Criminal Defense Lawyers

Federal Armed Career Criminal Act: ACCA Enhancement Defense

Heres the math that keeps federal criminal defense attorneys up at night: the average sentence for someone convicted of being a felon in posession of a firearm is 67 months. But if the Armed Career Criminal Act applies, that average jumps to 199 months. Thats a difference of 132 months—eleven years of someone’s life—riding on whether three prior convictions qualify as “predicates” under a law passed almost four decades ago.

The Armed Career Criminal Act, or ACCA, creates a 15-year mandatory minimum sentence for defendants convicted of firearm possesion under 18 U.S.C. § 922(g) who have three prior convictions for “violent felonies” or “serious drug offenses.” If ACCA applies to you, your facing at least 15 years in federal prison. If it doesnt apply, your looking at a maximum of 10 years—and statistically, much less.

The good news is that ACCA enhancement isnt automatic. Over the past decade, the Supreme Court has issued a series of decisions that create significant opportunities to challenge whether prior convictions actually qualify as ACCA predicates. In 2015, the Court struck down an entire category of qualifying offenses as unconstitutionaly vague. In 2021, it ruled that crimes requiring only recklessness cant be “violent felonies.” In 2022, it clarified that multiple crimes committed in a single episode count as only one “occasion.” And in 2024, the Court issued two more decisions expanding defendants’ rights in ACCA cases.

If your facing an ACCA enhancement—or if you’ve already been sentenced under ACCA—understanding these defenses could mean the diffrence between a decade in prison and a career-ending sentence that stretches into your sixties or beyond.

What Is the Armed Career Criminal Act?

The Armed Career Criminal Act is codified at 18 U.S.C. § 924(e). It applies specificaly to defendants convicted of being a felon in possesion of a firearm under 18 U.S.C. § 922(g). Without ACCA, that offense carries a maximum penalty of 10 years in prison. With ACCA, the minimum becomes 15 years—and the implied maximum is life.

For ACCA to apply, the goverment must prove that the defendant has three prior convictions for either “violent felonies” or “serious drug offenses”—or some combination of both. These prior convictions must have been “commited on occasions diffrent from one another,” meaning they cant all stem from a single criminal episode.

The law was enacted in 1984 as part of a broader tough-on-crime movement, targeting what Congress perceived as “career criminals” who repeatedly comitted serious offenses. The idea was that someone with three serious prior convictions who then posseses a firearm represents a particuarly dangerous threat deserving of enhanced punishment.

In practice, ACCA has swept up many defendants whose criminal histories look nothing like the “career criminal” image Congress had in mind. State definitions of “burglary” and “assault” vary widely, and many defendants have found themselves facing 15-year minimums based on convictions that, under federal definitions, wouldnt qualify as predicates at all.

What Makes a Conviction Qualify as a Predicate?

To trigger ACCA, a prior conviction must fall into one of two categories: “violent felony” or “serious drug offense.” Understanding these definitions is critical because each one is subject to challenge.

Violent Felonies

The statute defines “violent felony” in three ways. The first two remain valid; the third was struck down by the Supreme Court.

The Elements Clause: A crime qualifies if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” This is sometimes called the “force clause.” Important note: the Supreme Court ruled in 2021 that this clause requires purposeful or knowing conduct—crimes commited recklessly dont qualify.

The Enumerated Offenses Clause: A crime qualifies if it “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” The specficaly listed offenses—burglary, arson, extortion, explosives—are the “enumerated” offenses. But there’s a catch: these terms have “generic” federal definitions that may differ from state definitions.

The Residual Clause (STRUCK DOWN): The phrase “otherwise involves conduct that presents a serious potential risk of physical injury to another” used to be a third path to qualification. In 2015, the Supreme Court declared this “residual clause” unconstitutionaly vague. It no longer provides a basis for ACCA enhancement.

Serious Drug Offenses

A “serious drug offense” is defined as either a federal drug offense under the Controlled Substances Act punishable by 10 or more years, or a state drug offense involving manufacturing, distributing, or possessing with intent to do either, that is punishable by 10 or more years.

Importantly, the drug involved must have been on the federal controlled substance schedules at the time of the state conviction. If a drug wasnt federaly scheduled when you were convicted—even if it’s scheduled now—the conviction may not qualify. The Supreme Court clarified this in 2024.

The Categorical Approach: How Courts Evaluate Predicates

This is where ACCA defense gets technical—and where many successful challenges originate. Courts dont look at what you actualy did. They look at the elements of the offense you were convicted of.

The “categorical approach” requires courts to compare the elements of the state statute of conviction to the elements of the generic federal definition. If the state statute is broader than the federal definition—meaning it criminalizes conduct that wouldnt qualify under federal law—the conviction cannot be an ACCA predicate.

Why This Matters

Let’s say you commited what everyone would agree is a classic burglary: you broke into a house at night and stole valuables. But the state statute you were convicted under defines burglary to include not just buildings, but also vehicles, boats, and aircraft. Under federal law, generic burglary requires entry into a “building or structure”—vehicles dont count.

Even though your conduct was clearly a building burglary, your conviction is under a statute that could have covered vehicle burglaries. Because the statute is broader than generic burglary, your conviction cannot be an ACCA predicate. It dosent matter what you actualy did. All that matters is whether the statute, by its elements, matches the federal definition.

The Modified Categorical Approach

Some statutes are “divisible”—they contain multiple alternative elements that essentialy define diffrent crimes. In these cases, courts can look at a limited set of documents (the indictment, plea agreement, plea colloquy, jury instructions) to determine which specific offense the defendant was convicted of.

But heres the key: courts cannot look at the “means” by which a crime was commited—only at alternative “elements.” If a statute lists diffrent ways to commit a single crime (like “entering by force, fraud, or deception”), those are means, not elements. If any of those means would fall outside the generic definition, the conviction fails.

Johnson v. United States: The Residual Clause Is Dead

In 2015, the Supreme Court fundamentaly changed ACCA law with its decision in Johnson v. United States. The Court declared the residual clause—”otherwise involves conduct that presents a serious potential risk of physical injury to another”—unconstitutionaly vague in violation of due process.

The problem, the Court explained, was that applying the residual clause required courts to imagine a “typical” version of the crime and assess its risk of injury. But different courts imagined diffrent “typical” versions, leading to inconsistant results. The same offense might qualify as a violent felony in one circuit but not another. This level of uncertainy violated constitutional requirements that criminal statutes give fair notice of what conduct they prohibit.

Impact of Johnson

The impact was immediate and significant. Thousands of federal prisoners had been sentenced under ACCA based on prior convictions that qualified only under the residual clause. After Johnson, those convictions no longer supported ACCA enhancement.

In Welch v. United States (2016), the Supreme Court held that Johnson announced a “substantive” rule that applies retroactivley on collateral review. This meant that prisoners already serving ACCA sentences could challenge them through 28 U.S.C. § 2255 motions—even if there prior petitions had been denied.

If you were sentenced under ACCA before Johnson, and if any of your predicate convictions were found to qualify under the residual clause, you may have grounds for relief. This is one of the most significant ACCA defense opportunities in decades.

Mathis v. United States: Elements vs. Means

A year after Johnson, the Supreme Court reinforced the categorical approach in Mathis v. United States (2016). The case involved Iowa’s burglary statute, which criminalizes entry into “any building, structure, land, water, or air vehicle.” Federal generic burglary, defined in Taylor v. United States (1990), requires entry into a “building or structure.”

The question was whether Iowa burglary qualifies as generic burglary for ACCA purposes. The Court held it does not.

The Elements vs. Means Distinction

Iowa’s list of locations—buildings, structures, vehicles, aircraft—represents alternative means of commiting a single crime, not alternative elements defining diffrent crimes. Because the statute is “indivisible” (there’s only one burglary crime under Iowa law), courts cannot look at court documents to determine whether the defendant burglarized a building or a vehicle. They must compare the statute as written to generic burglary.

Since Iowa burglary covers vehicles and generic burglary does not, Iowa burglary is broader than generic burglary. Therefore, an Iowa burglary conviction cannot be an ACCA predicate—regardless of whether the defendant actualy burglarized a building.

Defense Application

Mathis created a roadmap for challenging burglary predicates. Many state burglary statutes cover more than buildings and structures. Some include vehicles. Some include tents or temporary shelters. Some include land. If your state’s burglary statute covers anything beyond buildings and structures, your burglary conviction may not qualify as an ACCA predicate.

The same analysis applies to other enumerated offenses. If your state’s definition of arson, extortion, or any other crime is broader than the generic federal definition, the conviction may not qualify.

Borden v. United States: Recklessness Doesnt Count

In 2021, the Supreme Court issued another major ACCA defense decision in Borden v. United States. The question was whether crimes requiring only reckless mens rea can qualify as “violent felonies” under the elements clause.

Charles Borden had a prior Tennessee conviction for reckless aggravated assault. The elements clause requires “the use, attempted use, or threatened use of physical force against the person of another.” Does reckless assault satisfy this definition?

The Court’s Answer

In a 5-4 decision, the Court said no. Justice Kagan, writing for the plurality, focused on the phrase “against the person of another.” This language, she explained, requires that force be “directed at” another person—not merely that force was used and another person happened to be injured.

Reckless conduct, by definition, involves disregard of risk rather than purposefull action. A person acting recklessly may injure someone, but they’re not directing force “against” anyone. There simply indifferent to the risk there conduct creates.

The Court reasoned that Congress intended the elements clause to cover “a narrow category of violent, active crimes”—those involving deliberate choices to harm others. Reckless crimes dont fit that description.

Defense Application

Borden is a powerfull tool for challenging assault predicates. Many state assault statutes include recklessness as a sufficient mens rea. If your prior conviction was for reckless assault, reckless endangerment, or any other crime that could be commited recklessly, it may not qualify as a violent felony under the elements clause.

The analysis requires looking at the statute of conviction to determine what mental state is required. If recklessness suffices—even if you personaly acted knowingly—the conviction cannot qualify under the elements clause.

Wooden v. United States: One Night, One Occasion

The ACCA requires three prior convictions “commited on occasions diffrent from one another.” In Wooden v. United States (2022), the Supreme Court clarified what this means.

William Wooden burglarized ten storage units in a single storage facility on a single night. He was convicted of ten counts of burglary—one for each unit. The goverment argued he had ten ACCA predicates. Wooden argued he had one.

The Court’s Ruling

In a unanimous decision, the Court agreed with Wooden. Justice Kagan wrote that the “occasions” inquiry requires a multi-factor analysis considering timing, location, and “the character and relationship of the offenses.”

Multiple crimes commited as part of a single criminal episode—in immediate proximity, with no intervening events—occur on a single “occasion.” Wooden didnt become a career criminal when he moved from the second storage unit to the third. He was engaged in one continuous burglary spree that happened to produce ten separate charges.

Defense Application

Wooden provides a tool for defendants who’s “multiple” predicates arose from a single event or closely related events. If you have several convictions from a single night, a single crime spree, or a single episode of criminal activity, those may count as only one “occasion” for ACCA purposes.

The goverment may argue that sequential crimes—commited one after another—are on diffrent occasions. But Wooden makes clear that timing alone isnt dispositive. The analysis must consider all factors, and crimes commited as part of a continuous episode should count as one occasion.

2024 Supreme Court Cases: Erlinger and Brown

The Supreme Court continued refining ACCA law in 2024 with two important decisions that give defendants new tools.

Erlinger v. United States

Erlinger addressed who decides whether offenses occured on “occasions diffrent from one another.” The goverment argued that judges could make this determination by a preponderance of the evidence. The defendant argued he had a Sixth Amendment right to have a jury decide.

The Court agreed with the defendant. The “separate occasions” finding is not merely identifying prior convictions—it requires determining facts about those convictions that go beyond what a jury necessarilly found. Under the Court’s Sixth Amendment jurisprudence, such fact-finding must be done by a jury and proved beyond a reasonable doubt.

This is a significant procedural protection. If your facing ACCA enhancement and the goverment claims your priors occured on separate occasions, you have the right to demand that a jury make this determination—not a judge. And the goverment must prove it beyond reasonable doubt, not by preponderance.

Brown v. United States

Brown addressed how to determine whether a state drug conviction qualifies as a “serious drug offense.” The question was whether the drug must have been on the federal controlled substance schedules at the time of the federal possesion offense, or at the time of the prior state conviction.

The Court held that scheduling is determined at the time of the state conviction. If a drug was on the federal schedules when you were convicted in state court, that conviction can be an ACCA predicate—even if the drug was later removed from the schedules. Conversly, if a drug wasnt federaly scheduled at the time of your state conviction, that conviction cannot be a predicate—even if the drug was added to the schedules later.

This matters for drugs that have moved on and off federal schedules over time. If your state drug conviction involved a substance that wasnt federaly scheduled at the time, you may have grounds to challenge it as a predicate.

Defense Strategies by Predicate Type

Given the complexity of ACCA law, it helps to have a systematic approach to evaluating potential defenses. Here’s a framework for assessing each type of predicate.

Challenging Violent Felony Predicates

Step 1: Was the residual clause used? If your sentencing occured before Johnson (2015) and the predicate was found to qualify under the residual clause, you have grounds for relief. Review your sentencing transcript and any goverment filings to determine which clause was used.

Step 2: Is the state statute broader than the generic offense? For enumerated offenses (burglary, arson, extortion), compare your state statute to the federal generic definition. If your state’s definition covers conduct beyond the generic definition—vehicles for burglary, property damage for arson—the conviction may not qualify.

Step 3: Does the crime require only recklessness? For elements clause predicates (crimes involving force against another), examine the mens rea requirement. If the statute can be violated through reckless conduct, the conviction doesnt qualify after Borden.

Step 4: Were “multiple” convictions actually one occasion? If your three predicates include convictions from a single episode—same night, same location, continuous conduct—they may count as only one occasion under Wooden. Demand a jury determination under Erlinger.

Challenging Serious Drug Offense Predicates

Step 1: Was the drug federaly scheduled at the time? Under Brown, the drug must have been on federal schedules when you were convicted in state court. Research whether your drug was scheduled at that specific time.

Step 2: Was the maximum penalty 10+ years? The state offense must be punishable by a maximum of 10 years or more. Check the statutory maximum at the time of your conviction.

Step 3: Does the state definition match the federal? The categorical approach applies to drug offenses too. If your state’s definition of the offense is broader than federal law, the conviction may not qualify.

Post-Conviction Relief Options

If you’ve already been sentenced under ACCA, your not out of options. Several avenues exist for challenging an ACCA enhancement after conviction.

28 U.S.C. § 2255 Motions

The primary vehicle for challenging a federal sentence is a motion under 28 U.S.C. § 2255. This motion allows you to argue that your sentence was imposed in violation of the Constitution or federal law.

Normaly, § 2255 motions must be filed within one year of the date your conviction becomes final. However, if a new rule of constitutional law is made retroactive by the Supreme Court, you get one year from the date of that decision to file.

Johnson was made retroactive in Welch, meaning prisoners sentenced under the residual clause could file § 2255 motions within one year of Welch. If you missed that window, you may still be able to seek permission for a “succesive” petition if you can show that your case involves a constitutional violation.

28 U.S.C. § 2241 Petitions

In some circuits, prisoners may be able to challenge there sentences through § 2241 petitions filed in the district of incarceration, rather than § 2255 motions filed in the sentencing district. This is available when § 2255 is “inadequate or ineffective to test the legality of detention.”

The circuits are split on when § 2241 is available. Some recognize it as a vehicle for prisoners to challenge ACCA sentences based on new Supreme Court decisions. Others dont. Check the law in your circuit to determine if this option is available.

What to Expect

If you file for post-conviction relief and succeed in showing that a predicate conviction doesnt qualify, the goverment may try to substitute a diffrent predicate. Courts have generaly been skeptical of this tactic, especialy when the goverment is trying to raise new predicates for the first time on collateral review. But be prepared for the possibility.

If your successful and ACCA no longer applies, you’ll be resentenced without the 15-year mandatory minimum. This can result in dramatically reduced sentences—from 199 months down to something much closer to 67 months or less.

The Stakes and the Path Forward

Let’s return to where we started: the diffrence between an average ACCA sentence (199 months) and an average non-ACCA sentence for felon in possesion (67 months) is 132 months. Thats eleven years. For many defendants, thats the diffrence between getting out in there forties and getting out in there sixties. Its the diffrence between rebuilding a life and loosing a life.

The Supreme Court has consistantly held that ACCA must be interpreted carefully, with attention to its actual language and with respect for defendants’ constitutional rights. The residual clause is gone. Reckless crimes dont qualify. Single criminal episodes count as one occasion. Juries must find separate occasions beyond reasonable doubt. Drug scheduling is determined at the time of conviction.

Each of these holdings reflects a judicial recognition that ACCA’s harsh penalties should apply only when the statute’s requirements are genuinly satisfied—not when goverment convenience or expansive interpretation would sweep in defendants who dont fit the profile of a “career criminal.”

If your facing ACCA enhancement, every predicate conviction should be scrutinized. The categorical approach may save you if your state statute is overbroad. Borden may save you if your conviction involved recklessness. Wooden and Erlinger may save you if your “three” predicates were really one episode. Johnson may save you if your sentence was based on the now-void residual clause.

If you’ve already been sentenced under ACCA, post-conviction relief remains available. The stakes—132 months of your life—justify the effort of exploring every possible challenge.

ACCA enhancement is not automatic. Its not guaranteed. Its a legal determination that must be made correctly, following the Supreme Court’s guidance, with respect for your constitutional rights. An experienced federal criminal defense attorney can evaluate your specific predicates and identify which defenses may apply to your case.

One hundred thirty-two months. Eleven years. Thats whats at stake. And thats why ACCA defense matters.