Wednesday, September 14, 2011


This bulletin is for defendants charged in the federal courts as felons in possession facing enhancement under §924(e) and, indirectly, for those facing Guidelines sentencing as a Career Offender. The Supreme Court's most recent decision in Sykes on the subject of what constitutes a "violent felony" appears to be at least a temporary setback to a trend limiting application of the Armed Career Criminal Act to only those defendants with a history of convictions for crimes involving purposefully aggressive conduct.

What is the Armed Career Criminal Act? The ACCA imposes a 15-year mandatory minimum prison term on a felon unlawfully in possession of a firearm who has three prior convictions for committing certain drug crimes or "a violent felony," 18 U. S. C. §924(e)(1), defined as a crime punishable by more than one year's imprisonment that, inter alia, "involves conduct that presents a serious potential risk of physical injury to another," §924(e)(2)(B)(ii).

Why is it important? The Act is supposed to present a three-strikes rule to deter criminals with a history of violent criminal conduct. The problem with the Act historically has been that the statute was over extended or wrongly applied to individuals with minor criminal records for typically non-violent offenses - for example, repeat drunk driving felony conviction (Begay, infra) or failing to report to serve a prison sentence (not escape) after a defendant has been given post conviction bail and ordered to present himself at a jail or prison to serve a sentence (Chambers). Most would agree that convictions for robbery, arson, extortion, kidnapping, murder, rape and other such misconduct are violent felonies. But the criminal law has often been extended by statute to include non-violent misconduct under the same statutory sections and definitions as misconduct generally acknowledged to be crimes of violence - for instance, burning a car to recover insurance money is arson under most state criminal statutes (common law defined arson by the more violent conduct of intentionally setting a fire that causes the material wasting of a dwelling house, a crime that created a far greater risk of harm).

At issue in recent litigation is the meaning of the statute's residual or "catch-all" clause:

The Act defines a “violent felony” as a “crime punishable by imprisonment for a term exceeding one year” that also either “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or other.” §924(e)(2)(B), the ACCA’s so-called residual clause

See, Begay v. United States, 553 U.S. 137 (2008) (drunk driving crimes cannot be a crime of violence predicate) Applicable statutes 18 USC §§ 922(g) 924(e) 924(g) 924(c)

See, also Chambers v. United States, 555 U. S. 122 (2009) (failing to report for incarceration does not qualify as a "violent felony" for the purposes of the Armed Career Criminal Act (18 U.S. 924 (e)).

For purposes of the Act's definitions, it is the generic crime that counts, not how the crime was committed on a particular occasion. Taylor v. United States, 495 U. S. 575, 602. This categorical approach requires courts to choose the right category, and sometimes the choice is not obvious. The nature of the behavior that likely underlies a statutory phrase matters in this respect. The state statute at issue in Chambers placed together in a single section several different kinds of behavior, which, as relevant here, may be categorized either as failure to report for detention or as escape from custody. Failure to report is a separate crime from escape. Its underlying behavior differs from the more aggressive behavior underlying escape, and it is listed separately in the statute’s title and body and is of a different felony class than escape. At the same time, the statutory phrases setting forth the various kinds of failure to report describe roughly similar forms of behavior, thus constituting a single category. Consequently, for ACCA purposes, the statute contains at least two separate crimes, escape and failure to report.

The “failure to report” crime was held not to satisfy ACCA’s “violent felony” definition. Although it is punishable by imprisonment exceeding one year, it satisfies none of the other parts of the definition. Most critically, it does not “involve conduct that presents a serious potential risk of physical injury to another.” Conceptually speaking, the crime amounts to a form of inaction, and there is no reason to believe that an offender who fails to report is otherwise doing some- thing that poses a serious potential risk of physical injury.

The Supreme Court's opinion in Johnson last year (case involving a predicate conviction for domestic assault) provided guidance to the lower courts that a conviction did not qualify as a crime of violence unless is involved purposeful aggressive conduct. United States v. Johnson (2010). Scalia, writing for the majority, concluded that the term “force” contemplates strength or energy, violence, and pressure directed against a person – that is, a degree of power not satisfied by the merest touching. The Court reasoned that the meaning of a statute is ultimately determined by its context, as it declined to “‘force term-of-art definitions into contexts where they plainly do not fit and produce nonsense.’” The Court deemed it clear that, in the context of a statutory definition of “violent felony,” “physical force” means violent force.

Johnson had pleaded guilty to possession of ammunition by a convicted felon. 18 U. S. C. §922(g)(1). The Government sought sentencing under the Armed Career Criminal Act, which authorizes an enhanced penalty for a person who violates §922(g) and who “has three previous convictions” for “a violent felony,” §924(e)(1), defined as, inter alia, an offense that “has as an element the use … of physical force against the person of another,” §924(e)(2)(B)(i). Among the three prior felony convictions the Government proffered was Johnson’s 2003 Florida conviction for simple battery, which ordinarily is a first-degree misdemeanor, Fla. Stat. §784.03(1)(b), but was a felony conviction for Johnson because he had previously been convicted of another battery, Fla. Stat. §784.03(2). Under Florida law, a battery occurs when a person either “[a]ctually and intentionally touches or strikes another person against [his] will,” or “[i]ntentionally causes bodily harm to another person.” §784.03(1)(a). Nothing in the record permitted the District Court to conclude that Johnson’s 2003 conviction rested upon the “strik[ing]” or “[i]ntentionally caus[ing] bodily harm” elements of the offense. Accordingly, his conviction was a predicate conviction for a “violent felony” under the Armed Career Criminal Act only if “[a]ctually and intentionally touch[ing]” another constitutes the use of “physical force” under §924(e)(2)(B)(i). Concluding it does, the District Court enhanced Johnson’s sentence under §924(e)(1), sentencing him to a term of 15 years.

A clear retreat from the bright-line rules established by Begay, Chambers and Johnson, all, supra, occurs in the high court's most recent decision, Sykes, a decision where the majority, Kennedy, instructs not to "read too much into" earlier decisions. Sykes v United States, No. 09–11311, decided June 9, 2011 (Kennedy, J.)(predicate convictions include an Indiana-law offense for eluding police in a motor vehicle that does not contain an element of violent conduct such as high speed chase, an assault with the vehicle or a crash). When punishable by more than one year in prison, Justice Kennedy reasoned, burglary, arson, extortion, and crimes that involve use of explosives are "violet felonies". Under the residual clause a crime is also a violent felony when it “otherwise involves conduct that presents a serious potential risk of physical injury to another,” §924(e)(2)(B)(ii), i.e., “comparable to that posed by its closest analog among” the statute’s enumerated offenses. According to the court's syllabus:

When defendant flees from police in a car, his determination to elude capture makes a lack of concern for the safety of others part of the offense, even if he drives without going full speed or the wrong way. Such a defendant, the argument goes, creates the possibility that police will exceed or almost match his speed or use force to bring him within their custody. A fleeing criminal who creates a risk of this dimension takes action similar in degree of danger to that involved in arson, which also entails intentional release of a destructive force dangerous to others. Also telling is a comparison to burglary, which is dangerous because it can end in confrontation leading to violence. In fact, the risks associated with vehicle flight may outstrip the dangers of both burglary and arson.

The majority rejected Sykes' argument that Begay v. United States, 553 U. S. 137, and Chambers v. United States, 555 U. S. 122, require predicate crimes to be purposeful, violent, and aggressive in ways that vehicle flight is not over reads those opinions. In general, levels of risk divide crimes that qualify as violent felonies from those that do not. Chambers is no exception: It explained that failure to report does not qualify because the typical offender is not “significantly more likely than others to attack, or physically to resist, an apprehender.” Begay, which held that felony repeat driving under the influence (DUI) is not an ACCA predicate and stated that it is not purposeful, violent, and aggressive, 553 U. S., at 145–148, is the Court’s sole residual clause decision in which risk was not the dispositive factor. But Begay also gave a more specific reason for its holding: DUI “need not be purposeful or deliberate,” id., at 145, and is analogous to strict-liability, negligence, and recklessness crimes. Begay’s “purposeful, violent, and aggressive” phrase is an addition to the statutory text that has no precise link to the residual clause. Because vehicle flight is not a strict-liability, negligence, or recklessness crime and is, as a categorical matter, similar in risk to the crimes listed in the residual clause, it is a violent felony.

See the website.