Wednesday, January 12, 2011

TX Fleeing by Vehicle Is Aggravated Felony, for Largely the Same Reason It's an ACCA Violent Felony

United States v. Sanchez-Ledezma, No. 10-40451 (5th Cir. Jan. 7, 2011) (Garza, Stewart, Haynes)

Recall that, in United States v. Harrimon, the Fifth Circuit found that evading arrest or detention by use of a vehicle, in violation of Texas Penal Code § 38.04(a), is a "violent felony" under the ACCA.  Specifically, Harrimon held that the Texas offense falls within the violent felony definition's residual clause, which reaches offenses that "involve[ ] conduct that presents a serious potential risk of physical injury to another[.]"  To satisfy that standard, an offense must be purposeful, violent, and aggressive, and present a degree of risk similar to that of the enumerated violent felonies (like arson).  Fleeing-by-vehicle fits the bill, so Harrimon held, because it involves an intentional act, flouting lawful authority is aggressive, and "the use of a vehicle . . . to evade arrest or detention typically involves violent force which the arresting officer must in some way overcome."

Which brings us to Sanchez-Ledezma, in which the court holds that Texas fleeing-by-vehicle is also an aggravated felony.  Specifically, it's a "crime of violence" under 18 U.S.C. § 16(b)—a definition incorporated in the aggravated felony definition—which reaches felonies that "involve[ ] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."  As you'll note, this definition is different from the ACCA's violent felony residual clause, focusing on the risk of force rather than the risk of injury.  Doesn't matter:
Sanchez-Ledezma argues that Harrimon does not expressly evaluate the risk that an actor would intentionally employ force in the course of committing a violation of section 38.04(b)(1)and focuses on the incidental risk of injury to bystanders rather than the risk of the intentional use of force. As the passage quoted above makes quite clear, that argument fails. We explained in Harrimon that the crime at issue in both that case and this “typically involves violent force which the arresting officer must in some way overcome” and “will typically lead to a confrontation with the officer being disobeyed, a confrontation fraught with risk of violence.” Our ultimate conclusion was that evading arrest with a vehicle met the standard for aggressiveness” under Begay, which we characterized as involving “offensive and forceful [behavior] . . . characterized by initiating hostilities or attacks.” These conclusions bear directly on the question of the risk of the use of physical force against a person in the course of committing the offense.

Evading arrest with a motor vehicle is, by the logic of Harrimon, a “crime of violence” for purposes of § 16(b), and therefore an “aggravated felony” for purposes of § 1101(a)(43)(F).
(cites to Harrimon omitted).
Note that the issue of whether fleeing-by-vehicle qualifies as an ACCA violent felony is currently before the Supreme Court in Sykes v. United States, which is being argued today.

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