Robbery Under Tex. Penal Code § 29.02 Qualifies as ACCA Predicate, Fits In "Violent Felony" Definition's Residual Clause
United States v. Davis, No. 05-40758 (5th Cir. May 17, 2007) (King, Davis, Barksdale)
As you've no doubt heard by now, the Supreme Court recently decided James v. United States, a case involving the so-called residual clause of the Armed Career Criminal Act's "violent felony" definition. The clause follows a list of enumerated violent felonies, and includes offenses that "otherwise involve[] conduct that presents a serious potential risk of physical injury to another." James held that the Florida offense of attempted burglary qualifies as a violent felony under the clause. But that's about all the opinion does. As three dissenting justices in James point out (Scalia, Stevens, and Ginsburg), the majority's reasoning is so narrow that it provides virtually no guidance for lower courts, or defendants, trying to figure out whether other offenses fit within the residual clause:
Nevertheless, the panel in Davis steps into the breach and finds sufficient guidance in James to hold that robbery under Texas Penal Code § 29.02 qualifies as a violent felony under the residual clause. The court began with what it understood to be "[t]he test articulated by James for determining whether an offense falls within the residual clause[:] 'whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.'" (Of course, the problem with James' test is that it does nothing more than restate the statutory language; it tells you nothing about how to make that determination.) After reviewing the way James tackled the issue, and discussing the elements of Texas robbery, the court reached its conclusion:
The court rejected Davis' argument that Texas robbery can be committed without a weapon and that unarmed robbery doesn't pose a serious enough risk of injury to qualify under the residual clause: "Even when the robber has no weapon, the very real possibility of confrontation between the robber and the victim creates a serious potential risk of injury."
Like James, Davis fails to provide much guidance on how to apply the residual clause to other offenses, except perhaps those that necessarily involve the risk of physical confrontation. The good news is that four Supreme Court justices think this approach to applying the ACCA is unconstitutional (three because it makes the ACCA unconstitutionally vague, and one because the judicial fact-finding violates Apprendi), so the cert petition practically writes itself. The bad news is that four is less than five.
As you've no doubt heard by now, the Supreme Court recently decided James v. United States, a case involving the so-called residual clause of the Armed Career Criminal Act's "violent felony" definition. The clause follows a list of enumerated violent felonies, and includes offenses that "otherwise involve[] conduct that presents a serious potential risk of physical injury to another." James held that the Florida offense of attempted burglary qualifies as a violent felony under the clause. But that's about all the opinion does. As three dissenting justices in James point out (Scalia, Stevens, and Ginsburg), the majority's reasoning is so narrow that it provides virtually no guidance for lower courts, or defendants, trying to figure out whether other offenses fit within the residual clause:
[F]or what is probably the vast majority of cases, today's opinion provides no guidance whatever, leaving the lower courts to their own devices in deciding, crime-by-crime, which conviction "involves conduct that presents a serious potential risk of physical injury to another." It will take decades, and dozens of grants of certiorari, to allocate all the Nation's crimes to one or the other side of this entirely reasonable and entirely indeterminate line.
Nevertheless, the panel in Davis steps into the breach and finds sufficient guidance in James to hold that robbery under Texas Penal Code § 29.02 qualifies as a violent felony under the residual clause. The court began with what it understood to be "[t]he test articulated by James for determining whether an offense falls within the residual clause[:] 'whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.'" (Of course, the problem with James' test is that it does nothing more than restate the statutory language; it tells you nothing about how to make that determination.) After reviewing the way James tackled the issue, and discussing the elements of Texas robbery, the court reached its conclusion:
To commit robbery, an individual must interact with the victim in order to cause bodily injury or place the victim in fear of it. See TEX. PEN. CODE ANN. § 29.02. Such interaction to take another’s property creates a serious potential risk of a violent confrontation between the robber and the victim. This in turn, in the ordinary case, presents a serious potential risk of physical injury to another.
The court rejected Davis' argument that Texas robbery can be committed without a weapon and that unarmed robbery doesn't pose a serious enough risk of injury to qualify under the residual clause: "Even when the robber has no weapon, the very real possibility of confrontation between the robber and the victim creates a serious potential risk of injury."
Like James, Davis fails to provide much guidance on how to apply the residual clause to other offenses, except perhaps those that necessarily involve the risk of physical confrontation. The good news is that four Supreme Court justices think this approach to applying the ACCA is unconstitutional (three because it makes the ACCA unconstitutionally vague, and one because the judicial fact-finding violates Apprendi), so the cert petition practically writes itself. The bad news is that four is less than five.
Labels: ACCA, COV, Enhancements, Taylor/Shepard
posted by Brad Bogan at 3:09 PM
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