ACCA Residual Clause Unconstitutional

Johnson v. United States, No. 13-7120, 576 U.S. __ (2015) (Scalia, Roberts, Ginsburg, Breyer, Sotomayor, Kagan; concurring opinions by Kennedy and Thomas; dissenting opinion by Alito) 

 

From the opinion:

 

"In Taylor v. United States, 495 U. S. 575, 600 (1990), this Court held that the Armed Career Criminal Act requires courts to use a framework known as the categorical approach when deciding whether an offense "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Under the categorical approach, a court assesses whether a crime qualifies as a violent felony "in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." Begay, supra, at 141.

 

Deciding whether the residual clause covers a crime thus requires a court to picture the kind of conduct that the crime involves in "the ordinary case," and to judge whether that abstraction presents a serious potential risk of physical injury. James, supra, at 208. The court’s task goes beyond deciding whether creation of risk is an element of the crime. That is so because, unlike the part of the definition of a violent felony that asks whether the crime "has as an element the use . . . of physical force," the residual clause asks whether the crime "involves conduct" that presents too much risk of physical injury. What is more, the inclusion of burglary and extortion among thee numerated offenses preceding the residual clause confirms that the court’s task also goes beyond evaluating the chances that the physical acts that make up the crime will injure someone. The act of making an extortionate demand or breaking and entering into someone’s home does not, in and of itself, normally cause physical injury. Rather, risk of injury arises because the extortionist might engage in violence after making his demand or because the burglar might confront a resident in the home after breaking and entering.

We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law."
 
See analysis at scotusblog.com.

Texas Assault (§ 22.01) Is ACCA Violent Felony, Even If Reckless

United States v. Espinoza, No. 11-50766 (Sept. 17, 2013) (Stewart, Davis, Wiener)

According to the panel, Texas reckless assault (Texas Penal Code § 22.01) qualifies as a violent felony under the residual clause of the Armed Career Criminal Act because it “involves conduct that presents a serious potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B).  The panel read the Supreme Court’s decision in Sykes to re-iterate that courts must conduct a risk analysis for the ACCA residual clause, since “the residual clause is designed to enhance punishment for offenses that involve a potential risk of physical injury similar to that presented by the offenses enumerated in the ACCA.”  The Begay “purposeful, violent and aggressive” conduct test is merely “a guide-post for analyzing the ACCA’s applicability to crimes that involve strict liability, negligence or recklessness.” 

In the instant case, “[r]eckless assault under § 22.01 requires proof that the defendant consciously disregarded a substantial and unjustifiable risk and in doing so, caused bodily injury to another.”  See Tex. Penal Code § 6.03 (defining recklessness).  So, a Texas assault conviction already incorporates the risk assessment: a substantial risk of causing bodily injury to another.  The panel analogized Texas assault to the ACCA-enumerated offense of burglary because both can end in confrontation leading to violence and “contemplate potential injury.”  “Because reckless assault creates, at a minimum, a similar degree of danger as burglary, we hold that it is a violent felony.”

No.

That's the answer to the question posed in this post from a few weeks ago: Is SCOTUS Poised to Reconsider Almendarez-Torres?

To recap, the Court seemed to be taking an interest in two petitions presenting the question of Almendarez-Torres's continuing viability.  It called for responses from the Solicitor General in both cases, and thereafter relisted both petitions three times.  Some observers thought that the multiple re-lists suggested, if not a possible grant, that one or more Justices might be preparing a dissent from or an opinion respecting denial of cert.

The suspense came to end yesterday, when the Court quietly denied cert in both cases, sans rending of garments or gnashing of teeth.  What to make of that?  Who knows, but given the nature of the issue, it's a little odd that the Court would give the petitions such careful consideration before denying them without at least some comment, especially if the issue is frivolous.

Is SCOTUS Poised to Reconsider Almendarez-Torres?

That the question posed in this post at SCOTUSblog.  What prompted this speculation?

As noted here, the Court called for a response with respect to two petitions that ask the Court to reconsider Almendarez-Torres: Ayala-Segoviano v. United States, 10-5296, and Vazquez v. United States, 10-6117. Since the government filed briefs in opposition, the Court has relisted those cases three times, at the January 7, 14, and (apparently) 21 Conferences.

The post goes on to caution that "[i]t is impossible to know with any certainty what the repeated relists mean[,]" and adds that it may mean one or more of the Justices is preparing a dissent from a denial of cert.  In any event, the attention the Court is giving these two cases suggests that the panel majority in Pineda-Arrellano was wrong when it opined (in dicta) that challenges to Almendarez-Torres are frivolous.

(Incidentally, Ayala-Segoviano is a 1326 case, while Vazquez raises the issue with regard to the ACCA.)

Cert Grant: Under ACCA, Is Maximum Punishment for Prior Offense Determined By Current Law or By Law In Effect at the Time of That Offense?

Under the ACCA, a "serious drug offense" is one carrying a maximum term of imprisonment of at least 10 years.  In determining whether a prior offense is a serious drug offense, does the court look at the maximum punishment authorized at the time the defendant committed the offense, or at the time of sentencing for the new federal offense?

That is the question on which the Supreme Court granted certiorari last week in McNeill v. United States, 10-5258.  And no, the case does not involve the situation where the maximum punishment for an offense was increased after the defendant committed the offense; in McNeill, the maximum punishment was actually reduced.  As you can see, opinions on the correct answer to the question presented could depend on whose defendant is being gored.

The question has produced a 2-2 circuit split.  The Fifth Circuit has held—in a situation in which the maximum was reduced and the reduced penalty was not made retroactive—that the court must look at the law in effect at the time of the prior offense, not at the current law.  United States v. Hinojosa, 349 F.3d 200 (2003).

Pleadings, etc. available at SCOTUSblog.

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.

Nice Opinion on Error Preservation and Harm In Appeal From Erroneous Guidelines Calculation

United States v. Neal, No. 08-30693 (5th Cir. Aug. 7, 2009) (Wiener, Garza, Elrod)

You'll want to keep this opinion handy, in case you get into a battle over whether an objection to a sentencing error was properly preserved in the district court. It's also a nice go-to for harm arguments when the district court miscalculated the advisory Guidelines range.

As the court recounted the facts,

Police officers responded to a domestic disturbance call at Neal’s apartment. Upon arrival, Neal’s estranged girlfriend informed the officers that Neal was in possession of illegal drugs. Neal consented to a search of his apartment, and the officers discovered (1) two firearms in the bedroom closet and (2) undetermined amounts of cocaine, ecstacy, hydrocodone, and marijuana elsewhere in the apartment.

After pleading guilty in state court to possession of hydrocodone, Neal pleaded guilty in federal court to being a felon in possession of firearms. Enter the probation officer, who contended that Neal was subject to a heightened offense level under the armed career criminal guideline (§4B1.4(b)(3)(A), (c)(2)), on the ground that “the defendant possessed the firearms along with controlled substances, therefore the defendant is deemed to have used or possessed the firearms in connection with a crime of violence or a controlled substance offense.” Neal objected, but the district court adopted the probation officer's recommended calculations and imposed a sentence at the bottom of the resulting 188- to 235-month Guidelines range.

Neal appealed. As is often the case, the court had to first resolve a dispute over whether Neal had preserved error. The discussion is important not only because it finds Neal's relatively spare objection sufficient to preserve error, but also because of some great language addressing the effect of a district court's misunderstanding of, or failure to respond to, an objection.

To preserve error, an objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction. United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000). Here, Neal raised the following complaint in his written objections to the PSR:

"2. Page 4 ¶ 20, defendant objects to the Probation Office’s finding that, pursuant to U.S.S.G. § 4B1.4(A), defendant should be considered an armed career criminal in that he used or possessed a firearm or ammunition in connection with a crime of violence or controlled substance offense as defined in U.S.S.G. § 4B1.2(A). Weapons found in Mr. Neal’s residence were not used nor were they possessed in connection with a crime of violence or controlled substance offense."

The government contends that this objection was too general to preserve error, as Neal never specifically alleged that simple possession of drugs fell outside the Guidelines definition of a “controlled substance offense.”

The government notes that the district court construed Neal’s written response as objecting solely to the proximity of the drugs, i.e., to whether the firearms found in the bedroom closet were possessed “in connection with” the drugs found elsewhere in the apartment. The government faults Neal for failing to clarify the basis of his objection after the district court’s initial response.

While Neal could certainly have been more clear and more persistent in raising an objection based on the definition of “controlled substance offense,” we conclude that his actions were sufficient to preserve error. For preservation purposes, we have never required a defendant to reiterate an objection simply because the trial court misconstrues or fails to respond to the original. The central inquiry is the specificity and clarity of the initial objection, not the defendant’s persistence in seeking relief. See Medina-Anicacio, 325 F.3d at 642 (“[O]nce a party raises an objection in writing, if he subsequently fails to lodge an oral on-the-record objection, the error is nevertheless preserved for appeal.”).

Here, it is sufficiently clear that Neal objected to his possession conviction being deemed a “controlled substance offense.” The second paragraph of Neal’s written response to the PSR, set forth supra, specifically objects to the PSR’s finding that the firearms were possessed in connection with a “controlled substance offense,” and cites to the relevant definitions section of the Guidelines for support. While the district court may have subsequently focused its analysis on the spatial relationship between the drugs and the firearms, we note that Neal raised this “proximity” objection explicitly and separately in the first paragraph of his written response. As such, it is reasonable to infer that the second paragraph was intended to raise a different objection, one based on the definition of a “controlled substance offense.” Moreover, during the sentencing hearing, Neal emphasized that his “predicate offense” was simple possession of a small amount of hydrocodone. While this statement standing alone may have been insufficient, we conclude that the combination of Neal’s oral and written objections was sufficient to preserve error in this case. See Ocana, 204 F.3d at 589.

Thus, de novo review of the Guidelines calculation, which was an easy one. A "controlled substance offense," for purposes of the armed career criminal guideline, does not include simple possession. There was no finding or evidence that Neal possessed the drugs with intent to distribute, dispense, etc., so application of the enhanced offense level and criminal history category was erroneous.

But was there harm? Yes. Without the enhancement, Neal's advisory Guideline range would have been 180 to 188 months, rather than the 188- to 235-month range calculated by the district court.

Where, as here, the district court commits a significant procedural error such as miscalculating the Guidelines range, we must vacate the sentence unless the error did not affect the selection of the sentence imposed. Delgado-Martinez, 564 F.3d at 753. The proponent of the sentence has the burden of establishing that the error was harmless. Id. Here, the government notes that Neal’s 188-month sentence falls within both the correctly and incorrectly calculated ranges. However, “[w]hile the fact that the actual sentence falls within the properly calculated Guidelines range may at times be relevant to the harmless-error inquiry, it is not dispositive.” Id. Based on our independent review of the record, we find no indication that the district court would have imposed the same sentence regardless of the Guidelines range. Accordingly, we cannot conclude that error was harmless and must remand. See id. at 754.

Hence vacation and remand.

Fives Reverse Course on UUV, Hold It's Not an Aggravated Felony

United States v. Armendariz-Moreno, No. 07-40225 (5th Cir. June 15, 2009) (per curiam) (Reavley, Barksdale, Garza)

The UUV saga is at an end. In a tersely-worded opinion, the Fifth Circuit has ditched Galvan-Rodriguez:

On December 12, 2007 this court affirmed the sentence of Armando Armendariz-Moreno (Armendariz) and rejected the objection to the 8 level enhancement of his offense level because of his prior conviction of unauthorized use of a motor vehicle in violation of Texas Penal Code § 31.07(a). As Armendariz conceded, the judgment was foreclosed by previous rulings of this circuit. See United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999).

The Supreme Court has now granted certiorari and remanded for consideration in the light of Begay v. United States, 128 S.Ct. 1581 (2008) and Chambers v. United States, 129 S.Ct. 687 (2009). Those opinions hold that the generic crime of violence or aggravated felony must itself involve purposeful, violent and aggressive conduct. The risk of physical force may exist where the defendant commits the offense of unauthorized use of a vehicle, but the crime itself has no essential element of violent and aggressive conduct. It follows that the Armendariz sentence rests on a procedural error. The government agrees that the sentence must be vacated and the case remanded for resentencing.

Sentence Vacated. Case Remanded.

This is the correct result, but the reasoning is a little hard to follow, for a couple of reasons. First, this line—"The risk of physical force may exist where the defendant commits the offense of unauthorized use of a vehicle, but the crime itself has no essential element of violent and aggressive conduct."—is essentially the holding of Galvan-Rodriguez, which the court necessarily concludes was wrongly decided.

Second, Begay and Chambers involved a slightly different definition than the one relevant here. The Begay/Chambers purposeful-violent-and-aggressive requirement is part of the "otherwise clause" in the ACCA's "violent felony" definition, which reaches felonies that "present[] a serious potential risk of physical injury to another[.]" In the UUV-as-aggravated-felony cases, on the other hand, the question is whether the felony "involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense[,]" under 18 U.S.C. § 16(b). Nevertheless, the Supreme Court evidently took the view that Begay/Chambers apply to the 16(b) risk clause, and Armendariz-Moreno confirms that. This also means that UUV is neither an ACCA "violent felony," nor a §4B1.2 COV.

Generic "Arson" Is Willful and Malicious Burning of Property; Doesn't Require Threat of Harm to a Person

United States v. Velez-Alderete, No. 08-20557 (5th Cir. June 2, 2009) (per curiam) (King, Garwood, Davis)

Various COV definitions include "arson" as an enumerated offense. Ever wondered what generic arson is? Wonder no longer. Velez-Alderete holds, as have other circuits, that "the generic, contemporary definition of arson involves a willful and malicious burning of property[,]" without any requirement that the burning threaten harm to a person. Velez-Alderete further holds that Texas's arson falls within that defintion:

Texas proscribes starting a fire “with intent to destroy or damage” various types of property ranging from structures and vegetation on open-space land to vehicles when the perpetrator knows that the vehicle is insured or when he is reckless concerning the safety of the property of another. All of these variations involve a willful and malicious burning of property.

At least 35 other states' arson statutes fit the bill, as well. Refer to the string cite in footnote 4 if you'd like to know which ones those are.

The Next SCOTUS ACCA Case? Fives Hold TX Fleeing-By-Vehicle Is ACCA Violent Felony, Deepening Circuit Split On Issue

United States v. Harrimon, No. 08-10690 (5th Cir. May 14, 2009) (Jones, Wiener, Benavides)

James, Begay, Chambers, Johnson, . . . Harrimon? Looks like we got us a convoy, as Harrimon contributes to yet another circuit split over whether a particular offense falls within the Armed Career Criminal Act's "violent felony" definition.

The felony offense in question: evading arrest or detention by use of a vehicle ("fleeing by vehicle" to its friends), in violation of Texas Penal Code § 38.04(a). The elements: "'(1) a person, (2) intentionally flees, (3) from a peace officer, (4) with knowledge he or she is a peace officer, (5) the peace officer is attempting to arrest or detain the person, (6) the attempted arrest or detention is lawful, and (7) the person uses a vehicle while . . . in flight.'"

The Government conceded that the offense lacks a force element; that it isn't burglary, arson, or extortion; and that it doesn't necessarily involve the use of explosives. Leaving the question: "whether it 'otherwise involves conduct that presents a serious potential risk of physical injury to another' under the 'residual' provision of clause (ii) of § 924(e)(2)(B)." Per Begay and Chambers, that's actually a two-part question that asks whether the offense in question is roughly similar to the enumerated violent felonies—burglary, arson, and extortion—"both (1) in kind [meaning purposeful, violent, and aggressive], and (2) in degree of risk posed (which must be at least a serious potential risk of physical injury to another)." Harrimon answers "yes" on both counts.

As for the in-kind similarity, the court

conclude[d] that fleeing by vehicle is purposeful, violent, and aggressive. First, it is purposeful: unlike the DUI statute at issue in Begay, fleeing by vehicle requires intentional conduct. Further, it is aggressive. “As commonly understood, aggressive behavior is offensive and forceful and characterized by initiating hostilities or attacks.” Fleeing by vehicle requires disregarding an officer’s lawful order, which is a clear challenge to the officer’s authority and typically initiates pursuit. This active defiance of an attempted stop or arrest is similar to the behavior underlying an escape from custody, which, as the Supreme Court noted in Chambers, is “less passive” and “more aggressive” than that likely underlying failure to report. Fleeing by vehicle is also violent: the use of a vehicle, usually a car, to evade arrest or detention typically involves violent force which the arresting officer must in some way overcome. As the Seventh Circuit observed in Spells, not only the arresting officer or officers, but also pedestrians and other motorists are subject to this force. Further, fleeing by vehicle “will typically lead to a confrontation with the officer being disobeyed,” a confrontation fraught with risk of violence.

(cites fled). As the court notes, this analysis is in line with that of the Fourth, Seventh, and Tenth Circuits, but contrary to an Eleventh Circuit decision—United States v. Harrison—involving a Florida statute similar to Texas's. Harrison "held that 'disobeying a police officer’s signal and continuing to drive on, without high speed or reckless conduct, is not sufficiently aggressive and violent enough to be like the enumerated ACCA crimes,' and that '[i]t is not the deliberate kind of behavior associated with violent criminal use of firearms.'" Harrimon declined to follow Harrison's lead, because "[t]o our minds, an offender’s willingness to use a vehicle to flout an officer’s lawful order to stop shows 'an increased likelihood' that the offender would, if armed and faced with capture, 'deliberately point the gun and pull the trigger.'" (quoting Begay)

Which brings us to the risk question. Noting James's proviso “that [not] every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony[,]" the court

ha[d] no difficulty concluding that, in the ordinary case, fleeing by vehicle poses a serious risk of injury to others. While Harrimon argues that fleeing by vehicle does not become dangerous until law enforcement interrupts the perpetrator, fleeing by vehicle, by definition, can only occur after an initial attempt by an officer to arrest or detain the perpetrator. “This disobedience poses the threat of a direct confrontation between the police officer and the occupants of the vehicle, which, in turn, creates a potential for serious physical injury to the officer, other occupants of the vehicle, and even bystanders.”

Moreover, while it is possible, as Harrimon argues, to be guilty of fleeing by vehicle despite obeying all traffic laws and later surrendering quietly, we think that, in the typical case, an offender fleeing from an attempted stop or arrest will not hesitate to endanger others to make good his or her escape. [citing James and the Tenth Circuit]

(some more cites fled). But wait, there's also data. The court cites a DOJ-funded study that found an incidence of .04 injuries per police pursuit. Which should weigh against a holding that flight-by-vehicle presents a serious potential risk of physical injury, right? Wrong. The court also cites a study by the U.S. Fire Administration finding that there are "roughly .009 injuries per arson." Thus, according to the court, the risk of injury presented by flight-by-vehicle is roughly similar to that presented by arson.

Assuming the court's understanding and use of those studies is correct—and I'm no statistician; haven't even played one on TV—then isn't the court effectively saying that by "serious potential risk of physical injury" Congress meant "even a vanishingly small risk of physical injury?" After all, .04 injuries-per-chase is practially zero, and that's an order of magnitude greater than the .009 injuries-per-arson. And if that's true, then there's really only one question to answer under the Begay/Chambers analysis isn't there? Because an offense is similar in kind to burglary, arson, or extortion—that is, a purposeful, violent, and aggressive offense—will always present a risk of injury at least as great as the virtually zero risk of injury posed by arson, won't it?

I suppose we'll just have to see how things play out in light of Harrimon. It'll also be interesting to see whether this case winds up as the next chapter in the Supreme Court's repeated efforts to explain how to apply the residual clause, a distinct possibility given the circuit split. (I'd like to see a cert grant if for no other reason than the "Who's-on-first?" comedy sure to arise at oral argument from having Harrison and Harrimon on opposite sides of the split.)

Finally, what effect will Harrimon have on the Fifth Circuit's upcoming revisitation of the UUV-as-aggravated-felony issue? Recall that the Supreme Court remanded three cases presenting that issue for reconsideration in light of Chambers, that the U.S. Attorney in the Southern District of Texas has taken the position in those cases that UUV is not an aggravated felony in light of Begay and Chambers, and that the Solicitor General has asked for a GVR in yet another case in light of that concession. Note also that Harrimon's similar-in-kind analysis is a lot like the reasoning underlying the Fifth Circuit's holdings in the UUV cases. Then again, the issue in those cases is whether UUV presents a substantial risk that force will be used, as opposed to a serious potential risk that injury will occur. Apples and oranges, or two peas in a pod? When it comes to waiting for the answer, you'll pay for the whole seat, but you'll only need the edge.

Another Cert Grant on ACCA "Violent Felony" Definition: Does a Nonconsensual Touching Constitute the Use of Physical Force?

Yesterday the Supreme Court granted cert in Johnson v. United States, No. 08-6925. The two questions presented are:

1. Whether, when a state's highest court holds that a given offense of that state does not have as an element the use or threatened use of physical force, that holding is binding on federal courts in determining whether that same offense qualifies as a ''violent felony" under the federal Armed Career Criminal Act, which defines ''violent felony" as, inter alia, any crime that "has as an element the use, attempted use, or threatened use of physical force against the person of another."

2. Whether this court should resolve a circuit split on whether a prior state conviction for simple battery is in all cases a "violent felony" - a prior offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Further, whether this court should resolve a circuit split on whether the physical force required is a de minimis touching in the sense of "Newtonian mechanics" or whether the physical force required must be in some way violent in nature - that is the sort of force that is intended to cause bodily injury, or at a minimum likely to do so.

I don't know off the top of my head if there's any Fifth Circuit case law on question one. As for question two, the Fifth Circuit has held that "force," for purposes of use-of-force clauses, is "synonymous with destructive or violence force." United States v. Dominguez, 479 F.3d 345, 345 (5th Cir. 2007). Plus, in Leocal v. Ashcroft, the Supreme Court interpreted the use-of-force clause in 18 U.S.C. § 16 to "suggest[] a category of violent, active crimes." 543 U.S. 1, 11 (2004).

By the way, the offense in question is simple battery on a police officer, which happens to be a felony under Florida law, and which can be committed merely by a nonconsensual touching (such as spitting on a police). The Florida Supreme Court has held that---under a Flordia statute parallelling the use-of-force clause in the ACCA's "violent felony" definition, and elsewhere---the offense does not involve the use of physical force or violence. The Eleventh Circuit, in Johnson, held that it wasn't bound by the Florida Surpeme Court's determination of whether the offense involves physical force, and also that simply touching a person without that person's consent constitutes the type of physical force necessary to qualify the offense as an ACCA "violent felony" under that defintion's use-of-force clause.

Interestingly (depending on what you find interesting, of course), the Supreme Court declined to grant cert on the third question presented, which was a should-Almendarez-Torres-be-overruled issue: "Whether the district court lacked the authority to sentence Mr. Johnson as an Armed Career Criminal, given that Mr. Johnson did not admit the predicate offenses for such a classification when he pled guilty."

Failure to Report for Service of Sentence Is Not an ACCA "Violent Felony"

Chambers v. United States, No. 06-11206 (U.S. Jan. 13, 2009)

Addressing a circuit split, the Supreme Court held yesterday, per Justice Breyer, that the Illinois offense of failing to report for penal confinement is not a "violent felony" under the ACCA. As in Begay, the question was whether the offense "otherwise involves conduct that presents a serious potential risk of physical injury to another," the so-called "residual clause" of the "violent felony" definition.

Building on James and Begay, the Court explained that,

[c]onceptually speaking, the crime amounts to a form of inaction, a far cry from the "purposeful, 'violent,' and 'aggressive' conduct" potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion. While an offender to fails to report must of course be doing something at the relevant time, there is no reason to believe that the something poses a serious potential risk of physical injury. To the contrary, an individual who fails to report would seem unlikely, not likely, to call attention to his whereabouts by simultaneously engaging in additional violent and unlawful conduct.

(cites failed to report for service in block quote).

In so holding, the Court rejected as "beside the point" the Government's argument "that a failure to report reveals the offender's special, strong aversion to penal custody." Instead, "[t]he question is whether such an offender is significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a 'serious potential risk of physical injury.'"

And on that point, we've got data. A Sentencing Commission analysis of the application of the escape guidline revealed that, out of 160 failures to report that were sentenced in 2006 and 2007, none involved violence and only 5 involved armed defendants. "The upshot is that the study strongly supports the intuitive belief that failure to report does not involve a serious potential risk of physical injury." (The Government managed to dig up three reported cases from a period of 30 years in which individuals who failed to report shot at pursuing officers. The Court viewed that as consistent with the Commission data, given the larger data set.)

Justice Alito, joined by Justice Thomas, wrote a separate opinion concurring in the judgment only. Although willing to accept Begay as a matter of stare decisis (and because of the special force the doctrine carries in the statutory construction arena), they still think that decision is irreconcilable with the text of the residual clause. Alito also opines that the Taylor/Shepard categorical approach has made the "ACCA's residual clause . . . nearly impossible to apply consistently[,]" and suggests that Congress should ditch the residual clause in favor of a longer laundry list of enumerated offenses. Moreover, Alito apparently also favors jettisoning the Taylor/Shepard categorical approach not just for the residual clause, but for enumerated offenses as well. And that makes one wonder why Thomas joined Alito's opinion in its entirety, given that Thomas expressed the opinion in Shepard that going beyond the categorical approach to consider the actual facts of prior offenses would violate the constitution. Or perhaps that means I'm mistaken about Alito's position on the categorical approach.

Burglary for Texas, Burglary for Tennessee (But Not for ACCA)

United States v. Constante, No. 07-41004 (5th Cir. Oct. 6, 2008; revised Oct. 28, 2008) (per curiam) (King, Higginbotham, Wiener)

COV fans will recall that the Fifth Circuit held, in United States v. Herrera-Montes, that a burglary committed under subsection (a)(3) of Tennessee's burglary statute is not generic "burglary" for purposes of guideline §2L1.2's 16-level COV definition. That's because the Taylor burglary definition, among others, requires the specific intent to commit another crime at the time of the entry, whereas Tennessee's (a)(3) burglary does not require the perpetrator to intend to commit the other offense at the time of the entry. Herrera-Montes noted that the same would hold true for subsection (a)(3) of Texas's burglary statute (Penal Code § 30.02), which is nearly identical to Tennessee's.

Leading to the obvious question: whether burglary under Texas Penal Code § 30.02(a)(3) constitutes generic "burglary" for purposes of the ACCA (18 U.S.C. § 924(e)), the statute at issue in Taylor. The Fives have twice said "yes," albeit in unpublished opinions. So Constante goes ahead and makes it official.

More important, though, is what the court said about the burden of establishing that a particular crime qualifies as an ACCA predicate. The Government argued that it wasn't clear whether Constante's burglary conviction was under § 30.02(a)(1)---which does require intent to commit another crime at the time of entry---or under § 30.02(a)(3)---which does not. As the court pointed out, for what seems like the 976th time, the Government bears the burden of proving that a prior conviction qualifies for the sentencing enhancement. Thus, any ambiguity as to which portion of § 30.02 underlay Constante's conviction means the Government failed to carry its burden.

The Government also argued "that after it established the prior convictions, Constante had the burden of proving the invalidity of those convictions by a preponderance of the evidence[,]" citing some cases. Not so, said the court. The cases the Government cited "relate to the constitutional validity of a guilty plea and not to establishing the precise statute under which the defendant was convicted."

There's one final point worth mentioning, in case it pops up in any of your cases. Constante's burglary indictment alleged that he “intentionally or knowingly enter[ed] a habitation, without the effective consent of . . . the owner . . . and attempted to commit or committed theft of property.” The court explained that the

“intentionally or knowingly” language in the indictment refers to a general criminal intent requirement, but not the specific intent element contained in § 30.02(a)(1) and the Taylor definition of generic burglary. See Beasley v. McCotter, 798 F.2d 116, 120 (5th Cir. 1986) (noting that § 30.02(a)(1) requires “specific intent to commit a felony or theft in the building” and § 30.02(a)(3) requires only the more general culpable mental state such as intentionally or knowingly). In other words, under § 30.02(a)(3) a defendant must intentionally or knowingly enter the building, but he would not have to intend to commit a felony, theft, or assault at that time. Only this latter type of specific intent is relevant to the Taylor definition of generic burglary.

TX Delivery of Controlled Substance, Even If Based on Offer to Sell, Is "Serious Drug Offense" Under ACCA

United States v. Vickers, No. 07-10767 (5th Cir. Aug. 12, 2008) (Stewart, Owen, Southwick)

From the you-can't-tell-the-players-without-a-program files:

We know that the Texas offense of delivery of a controlled substance is neither a "drug trafficking" offense under guideline §2L1.2, nor a "controlled substance offense" under guideline §4B1.2(b), if the offense could have rested on the offer-to-sell alternative found in Texas's definition of "delivery." Which begs the obvious question: is it a "serious drug offense" for purposes of the Armed Career Criminal Act?

Yes, sayeth Vickers. Unlike the two guidelines definitions, which list specific acts that constitute a DTO or CSO, the ACCA's SDO definition extends to offenses "involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . ." (emphasis added). "The word 'involving,'" the court says, "is an exceedingly broad term for a statute." And it's broad enough to encompass delivery by offer-to-sell:

The ACCA is intended to cover those individuals whose prior convictions indicate an “increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.” Begay v. United States, 128 S. Ct. 1581, 1587 (2008). The expansiveness of the word “involving” supports that Congress was bringing into the statute’s reach those who intentionally enter the highly dangerous drug distribution world. Being in the drug marketplace as a seller – even if, hypothetically, the individual did not possess any drugs at that time – is the kind of self-identification as a potentially violent person that Congress was reaching by the ACCA.

Color me unpersuaded. Even if the court is right about Congress's understanding of "involving" in the SDO definition, that definition still doesn't reach all the conduct encompassed by a Texas delivery-by-offer-to-sell. As the court acknowledges, under Texas law "the accused need not have any drugs to sell or even intend ever to obtain the drugs he is purporting to sell." That being the case, a conviction for delivery-by-offer-to-sell doesn't necessarily establish that the offender has "intentionally enter[ed] the highly dangerous drug distribution world." And under the Shepard categorical approach, which the court employs here, that means that delivery-by-offer-to-sell is broader than the SDO definition and doesn't qualify as an ACCA predicate.

But let's assume the court is correct that someone convicted of delivery-by-offer-to-sell has intentionally entered The Game. Is that "the kind of self-identification as a potentially violent person that Congress was reaching by the ACCA," as the court says? I think the answer is: we don't know, and that ought to trigger the rule of lenity. As Justice Scalia pointed out in his Begay concurrence---on the question of whether DUI poses the same risk of injury that burglary does---it is impossible to know how serious that risk is without knowing how many instances of DUI there are in a year, and those statistics aren't available. Consequently, in Justice Scalia's view, because one "can do more than guess as to whether drunk driving poses a more serious risk than burglary[,]" the rule of lenity kicks in and DUI can't be considered a "violent felony" under the ACCA. Likewise, without knowing just how frequently drug transactions erupt into violence, or even just the incidence of violence in the drug trade as a whole, it's impossible to know how likely it is that someone who offers to sell drugs is the "the kind of person who might deliberately point the gun and pull the trigger."

Applicable Recidivist Enhancements Determine "Maximum Term of Imprisonment" for ACCA "Serious Drug Offense" Predicate

United States v. Rodriquez, No. 06-1646 (U.S. May 19, 2008)

The Court has been struggling recently with the interpretation of the Armed Career Criminal Act. What's striking about these recent decisions is that they don't seem to apply any predictable or consistent framework for interpreting the poorly-drafted provisions of the ACCA, and that you're about as likely to predict the voting lineup by pulling the justices names out of a hat as you are by tracking their votes and reading their opinions in these cases. (see, e.g., Professor Anita Krishnakumar's ruminations on Begay and Rodriquez at Concurring Opinions). If anything, yesterday's decision in Rodriquez is the most perplexing of them all, as it includes a holding that doesn't seem at all reconcilable with the Court's recent explication of the rule of Apprendi (with the agreement of two Apprendi stalwarts, no less). But on the up side, it recognizes an important procedural limitation on the application of the ACCA, so you'll want to put the case on your to-read-soon list.

The ACCA, as you know, provides for an enhanced punishment for gun-possessing felons who have at least three prior convictions for a "violent felony" or "serious drug offense." An SDO is a drug offense "for which a maximum term of imprisonment of ten years or more is prescribed by law." The question is Rodriquez is whether the "maximum term of imprisonment" takes recidivist enhancements into account.

The question arose in Rodriquez's case because of his three prior Washington state convictions for delivery of a controlled substance (he also had two prior California residential burglary convictions). The relevant state statutes established a maximum sentence of five years for that basic offense, but also authorized a sentence of up to ten years for "[a]ny person convicted of a second or subsequent offense." The state judgment listed the maximum sentence as "ten years," but Rodriquez was sentenced to only 48 months on each count, which was apparently the maximum term authorized by the Washington sentencing guidelines.

The Court held---in an opinion written by Justice Alito for a six-robe majority---that the plain meaning of the terms "offense," "law," and "maximum term" mean that the "the maximum term prescribed by Washington law for at least two of respondent's state drug offenses was 10 years." In so holding, the Court reversed the Ninth Circuit's decision below, which had held that the "maximum term of imprisonment" under the ACCA is determined without regard to recidivist enhancements. The Court concluded that the Ninth Circuit's approach would lead to absurd results; for example, if Rodriquez had been sentenced to six years on the drug charges, the Ninth Circuit's approach would still treat those offenses as being subject only to a five-year maximum for ACCA purposes. The Court also found "[t]he Ninth Circuit's interpretation . . . inconsistent with the way in which the concept of the 'maximum term of imprisonment" is customarily understood by participants in the criminal justice process."

Rodriquez made a laundry list of arguments, all of which the Court rejected. (I'll only discuss a few of the more significant ones here.) He argued that the term "offense" typically refers only to the elements of a crime, and that because prior convictions are not typically treated as offense elements, they are not part of the "offense" for ACCA purposes. The Court, begging the question, simply responded that

[Rodriquez's] argument is not faithful to the statutory text. [He] reads ACCA as referring to "the maximum term of imprisonment prescribed by law" for a defendant with no prior convictions that trigger a recidivist enhancement, but that is not what ACCA says. ACCA instead refers to "the maximum term of imprisonment prescribed by law" for "an offense," and, as previously explained, in this case, the maximum term prescribed by Washington law for each of respondent’s two relevant offenses was 10 years.

Rodriquez also argued that it'll be a huge headache for district courts to determine whether a defendant faced a recidivist enhancement for a prior offense. The Court---in a very important paragraph that reveals a significant procedural limitation on the ACCA enhancement---was more sanguine:

First, in some cases, a defendant will have received a recidivist enhancement, and this will necessarily be evident from the length of the sentence imposed. Second, as the present case illustrates, the judgment of conviction will sometimes list the maximum possible sentence even where the sentence that was imposed did not exceed the top sentence allowed without any recidivist enhancement. Third, as respondent himself notes, some jurisdictions require that the prosecution submit a formal charging document in order to obtain a recidivist enhancement. Such documents fall within the limited list of generally available documents that courts already consult for the purpose of determining if a past conviction qualifies as an ACCA predicate. See Shepard v. United States, 544 U. S. 13, 20 (2005). Fourth, in those cases in which the defendant pleaded guilty to the state drug charges, the plea colloquy will very often include a statement by the trial judge regarding the maximum penalty. This is mandated by Federal Rule of Criminal Procedure 11(b)(1)(H), and many States have similar requirements. Finally, in those cases in which the records that may properly be consulted do not show that the defendant faced the possibility of a recidivist enhancement, it may well be that the Government will be precluded from establishing that a conviction was for a qualifying offense. The mere possibility that some future cases might present difficulties cannot justify a reading of ACCA that disregards the clear meaning of the statutory language.

(record cites omitted). This paragraph is critical, because it reveals that the Government must establish that the defendant actually faced a recidivist enhancement in the prior proceedings, not simply that a recidivist enhancement was possible. So, for example, it would not be enough to show that a defendant was convicted of a drug offense under a statute providing for a recidivist enhancement, and that he had previously been convicted of a qualifying predicate. If that was the case, then the Court would have just said that. Instead, the Court's examples demonstrate the Government must show---based on the sentence imposed, Shepard-type documents, or maybe a transcript of a plea colloquy---that the enhanced penalty was actually in play in the state case. And if the Government can't do that, then the ACCA enhancement would not apply.

The Court saved the most controversial holding for last. And by "controversial" I mean that it completely ignores recent Supreme Court holdings from the Apprendi line of cases. It also involves a question that Rodriquez conceded, in his brief in opposition, that he'd waived, so there's good reason to question why the Court addresses the issue in the first place.

Rodriquez argued that, in a state where mandatory sentencing guidelines cap a sentence below the theoretically applicable statutory maximum, the guidelines maximum is the "maximum term of imprisonment" for ACCA purposes. For example, even though the relevant statutes authorized a sentence of up to ten years' imprisonment for at least two of Rodriquez's drug convictions, it appears that the Washington sentencing guidelines authorized a sentence of no more than 48 months.

But the Court held that Congress intended for the "maximum term of imprisonment" to be the highest sentence authorized by statute, not the highest sentence available under sentencing guidelines. First, the Court said, "the top sentence in a guidelines range is generally not really the 'maximum term . . . prescribed by law' for the 'offense' because guidelines systems typically allow a sentencing judge to impose a sentence that exceeds the top of the guidelines range under appropriate circumstances."

Astonishingly, the Court doesn't attempt to reconcile this conclusion with its recent holdings in Blakely or Cunningham. The effect of those decisions is that the highest possible maximum sentence is not authorized in every case; that is, for some defendants in Washington, California, and other states that have Blakely-ized their guidelines, a sentence in excess of the guidelines maximum (or California's DSL default middle-term) would violate the Fifth and Sixth Amendment rights to proof beyond a reasonable doubt and to trial by jury. But not only is the Court completely silent on this glaring conflict, it actually cites the availability of upward departures under the current post-Booker advisory federal Sentencing Guidelines, and under the pre-Blakely Washington sentencing guidelines, as evidence that "essentially the same characteristic was shared by all of the mandatory guidelines systems in existence at the time of the enactment of the ACCA provision at issue in this case."

And that appears to be the lynchpin of the Court's holding, because it adds that "the concept of the 'maximum' term of imprisonment or sentence prescribed by law was used in many statutes that predated the enactment of ACCA and the federal Sentencing Reform Act of 1984, and in all those statutes the concept necessarily referred to the maximum term prescribed by the relevant criminal statute, not the top of the sentencing guideline range." Thus, "[i]n light of this established pattern and the relative newness of sentencing guidelines systems when the ACCA provision at issue here was added, we conclude that Congress meant the concept of the 'maximum term of imprisonment' prescribed by law for an 'offense' to have [the] same meaning in ACCA.

Recognizing that this result also seems inconsistent with the Court's construction of the Federal Juvenile Delinquency Act in United States v. R.L.C., the Court had this to say:

The statutory provision there, 18 U. S. C. §5037(c), set out the term of official detention for a juvenile found to be a delinquent. This provision was amended by the Sentencing Reform Act, and then amended again two years later. As thus amended, the provision did not refer to the "maximum term of imprisonment" prescribed for an "offense." Rather, the provision focused on the particular juvenile being sentenced. It provided that, "‘in the case of a juvenile who is less than eighteen years old,’" official detention could not extend beyond the earlier of two dates: the juvenile’s 21st birthday or "‘the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.’" Because this provision clearly focuses on the circumstances of the particular juvenile and not on the offense, it is not analogous to the ACCA provision that is before us in this case.

(most citation clutter omitted).

All this brings up a couple of questions. First, the Court is likely correct about circa ACCA/SRA-era understanding of the interaction between guidelines and statutory maximums. But that's no answer to the question of why that understanding should remain controlling more than twenty years later after the Court has repeatedly addressed that very issue and held that, depending on the operation of the state sentencing scheme, a sentence in excess of the guidelines maximum may be constitutionally prohibited. It also calls into question the so-called remedy in Booker, which rested on the notion that Congress originally intended for the federal Guidelines to be mandatory, but would not have wanted them to be mandatory if that would implicate constitutional procedural protections concerning pleading, the burden of proof, and the identity of the fact-finder for Guidelines calculations. If the Court could revise the Sentencing Reform Act to take into account what it believed Congress' intent would have been in light of the Booker merits holding, then why can't it reevaluate Congressional understanding of the term "maximum term of imprisonment" in light of Blakely, Booker, and Cunningham?

A second question is whether the same would hold true for a defendant whose relevant state convictions, in a mandatory-guidelines state, occurred after Blakely, especially a state that formally "Blakely-ized" its guidelines by judicial decision or legislative action. We know that, by that time, the understanding of a guidelines maximum was different than it was twenty-odd years ago. And we know that, at least as of 2004, Congress is well aware that in some states the guidelines maximum "trumps" a higher statutory maximum. It's hard to say for sure whether the Court would view that situation differently, but the majority opinion does provide some support for an argument that in such a situation the guidelines maximum is the controlling one for ACCA purposes:

The United States Sentencing Guidelines, for example, permit "upward departures," see United States Sentencing Commission, Guidelines Manual §5K2.0 (Nov. 2007), and essentially the same characteristic was shared by all of the mandatory guidelines system in existence at the time of the enactment of the ACCA provision at issue in this case. (Following this pattern, Washington law likewise provided at the time of respondent’s state convictions that a sentencing judge could "impose a sentence outsidethe standard sentence range" upon a finding "that there [were] substantial and compelling reasons justifying an exceptional sentence." Wash. Rev. Code §9.94A.120(2) (1994).)

(emphasis added). That's hardly conclusive, I know, but it's hard not to ask the question when it might provide some explanation for the Court's otherwise inexplicable silence on Blakely and kin.

You might read this portion of the case as a refusal on the part of some justices to accept the entire Apprendi line of cases, similar to Justice Breyer's position in Harris. But that doesn't explain why both Justices Scalia and Thomas join the majority here. They've both been staunch proponents of the rule of Apprendi (with Justice Thomas being arguably the staunchest), and Justice Scalia wrote Blakely. Why they joined this opinion is a mystery, as neither one of them wrote a separate opinion in the case. And their two votes were critical for the six-justice majority.

In fact, you might have expected them to join Justice Souter's outstanding dissent, as Justices Stevens and Ginsburg did. Justice Souter's major disagreement is elegantly simple: the statute is ambiguous on the question presented because the Government's and defendant's competing interpretations are at least equally plausible, thus triggering the rule of lenity. That rule prohibits reading the statute "so as to increase the penalty that it places on an individual when such an intepretation can be based on no more than a guess as to what Congress intended." As applied here, that would mean that the "maximum term of imprisonment" be read to refer to the maximum for the base offense, without reference to any recidivist enhancements.

Apart from that, Justice Souter catalogues a number of problems with the majority's interpretation of the statute, including the wide variation in the mechanics and severity of states' recidivist schemes, and the practical problems in determining exactly what the maximum sentence might have been for a particular recidivist, as opposed to the maximum for a basic offense. He also takes issue with the majority's resolution of the guidelines-vs.-statutory maximum question, although (strangely) without mentioning Blakely, Booker, and Cunningham. Instead, Justice Souter points out the arbitrariness of relying on one particular offender characteristic (recidivism) to the exclusion of other offender characteristics that are typically taken into account in guidelines calculations, as they are both "prescribed by law":

The Court tries to deflect the implication of its position by denying that state sentencing guidelines really do set maximum penalties, since typically they allow a judge to depart from them, up or down, when specified conditions are met. But while this is true, the objection stands. However a particular mandatory guideline scheme works, it sets a maximum somewhere; if it includes conditions affecting what would otherwise be a guideline maximum, the top of the range as affected should be the relevant maximum on the Court’s reading of the statute. Indeed, the factual conditions involved are usually offender characteristics, and if the ACCA is going to count them under offense-defining statutes or freestanding recidivism laws, those same facts ought to count under a guideline rule (whether setting, or authorizing a departure from, a particular limit). There is no practical difference whether maximums are adjusted by a statute, a statutorily mandated guideline, or a guideline-specified departure; wherever a "prescri[ption] by law" resides, itought to be honored by the ACCA court.

I encourage you to read the whole thing.

Begay 2: Electric Boogaloo?

Just five days after explicating the meaning of the "otherwise clause" in the ACCA's "violent felony" definition, the Supreme Court has granted cert in another case in which it will need to explicate the meaning of the "otherwise clause" in the ACCA's "violent felony" definition.

This time around the case is Chambers v. United States (No. 06-11206), and the felony at issue is failure-to-report escape. One might have expected that the case would be GVR'ed for reconsideration in light of Begay, but evidently there are at least four justices who feel that Begay (and James) provide insufficient guidance on this question. Looks like Justice Scalia was right when, in the course of criticizing the majority opinion in James for its lack of guidance to lower courts, he predicted that "[i]t 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." For those of you keeping score at home, we're up to two years and three grants, so far.

As usual, SCOTUSblog's collected the cert-stage filings for your perusal.

Begin the Begay (-Based Arguments, That Is): SCOTUS Holds Felony DUI Not an ACCA "Violent Felony"

Begay v. United States, No. 06-11543 (U.S. Apr. 16, 2008)

Today's Supreme Court news will likely be dominated by coverage of Baze v. Rees, the lethal-injection case, but today's decision in Begay will likely have a far bigger impact in terms of the number of cases affected.

At issue in Begay was whether felony DUI is a "violent felony" for purposes of the Armed Career Criminal Act's 15-year mandatory minimum sentence. More specifically, does felony DUI qualify under 18 U.S.C. § 924(e)(2)(B)(ii), which includes an offense that "is burglary, arson, or extortion, or otherwise involves conduct that presents a serious potential risk of physical injury to another." (emphasis added).

The answer: No. The Court concluded that, in order to give effect to every word in the definition, the "otherwise clause" must be interpreted to include only offenses that "are roughly similar, in kind as well as in degree of risk posed, to the" listed offenses. And how do we know if that rough similarity exists?

The listed crimes all typically involve purposeful, "violent," and "aggressive" conduct. . . . That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim. Crimes committed in such a purposeful, violent, and agressive manner are "potentially more dangerous when firearms are involved." And such crimes are "characteristic of the armed career criminal, the eponym of the statute."

(internal cites purposefully, perhaps aggressively, but definitely not violently, omitted). Measured against that standard, felony DUI doesn't make the cut:

By way of contrast, statutes that forbid driving under the influence, such as the statute before us, typically do not insist on purposeful, violent, and aggressive conduct; rather, they are, or are most nearly comparable to, crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have had any criminal intent at all.

(Id.) This construction is consistent with the ACCA's overall purpose, which is to address the special danger present when certain types of particularly dangerous felons possess guns:

In this respect---namely, a prior crime's relevance to the possibility of future danger with a gun---crimes involving intentional or purposeful conduct (as in burglary and arson) are different than DUI, a strict liability crime. In both instances, the offender's prior crimes reveal a degree of callousness towards risk, but in the former instance they also show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger. We have no reason to believe that Congress intended a 15-year mandatory prison term where that increased likelihood does not exist.

As Justice Scalia points out in his opinion concurring in the judgment, the majority's construction of the statute "excludes a slew of crimes from the scope of the residual clause[.]" So there's plenty of room to start litigating this issue with renewed vigor, and to attack prior decisions finding various crimes to fall within the residual clause.

By the way, why didn't Justice Scalia join the majority? As in James, he complains that the majority's test provides insufficient guidance to lower courts. Instead, he would apply the test he proposed in James: the risk of physical injury presented by the offense in question must be equivalent to or greater than the risk posed by the least serious enumerated offense, which is burglary. Justice Scalia then concludes that drunk driving doesn't present that level of risk. Although DUI is dangerous and kills thousands of people a year, it is impossible to know how serious that risk is without knowing how many instances of DUI there are in a year and those statistics aren't available. For some crimes, the severity of the risk is obvious, but that's not the case with DUI. And because one "can do more than guess as to whether drunk driving poses a more serious risk than burglary[,]" the rule of lenity kicks in and the enhancement cannot be applied.

Justice Alito, joined by Justices Souter and Thomas, dissented. He makes a number of interesting points, but his argument boils down to this: DUI is itself quite dangerous and easily fits within the literal language of the otherwise clause, and repeat DUI-ers who possess guns pose a danger just as serious as that posed by repeat burglars, arsonists, and so forth.

Finally, congrats to New Mexico AFPD Margaret Katze, lead counsel for Mr. Begay, as well as to all the others who helped on this very big win.

California "Grand Theft from a Person" is an ACCA "Violent Felony"

United States v. Hawley, No. 06-50510 (5th Cir. Jan. 30, 2008) (DeMoss, Dennis, Owen)

The issue: is "grand theft from a person" under Cal. Penal Code § 487(2) a "violent felony" under the Armed Career Criminal Act? The court answers "yes," holding that it's a violent felony under the "otherwise clause" in 18 U.S.C. § 924(e)(2)(B)(ii), which includes offenses that "otherwise involve conduct that presents a serious potential risk of physical injury to another." Hawley follows the lead of a Ninth Circuit case which reasoned thusly:

The California Penal Code defines grand theft from a person as “theft committed . . . when the property is taken from the person of another.” [Since 1897,] California courts have interpreted this statute to require that “the property shall at the time be in some way actually upon or attached to the person, or carried or held in actual physical possession . . . .”

. . . .

By definition, every conviction for grand theft from a person involves direct physical contact between the perpetrator and the victim; the property must be actually attached to or carried by the victim when it is taken by the thief. The thief must not only come near his victim to commit his crime; he must reach out and touch that victim. When he confronts the victim and seizes property from the victim’s person, the criminal creates a serious risk of physical injury to another; the victim might resist, or a bystander intervene, and a struggle ensue. Even though the thief might sometimes, by stealth, avoid immediate detection by his victim, he risks such a confrontation at every encounter. Viewed ex ante, the thief’s conduct presents a serious potential risk of physical injury to another.

The court also pointed to United States v. Hawkins, a Fifth Circuit case holding that a similar Texas theft statute is a "crime of violence" under guideline §4B1.2, which contains a similar "otherwise clause."

It's odd that the court would issue this decision right now, since the Supreme Court is poised to explicate the meaning of the "otherwise clause" in Begay v. United States. It's possible that the decision in Begay, which we'll have no later than the end of June, will require a different analysis than the one Hawley adopts.

TX Injury to Child by Act is 18 U.S.C. § 16(b) COV, Because Of Substantial Risk Physical Force Against Person Will Be Used In Course of Committing It

Perez-Munoz v. Keisler, No. 06-60440 (5th Cir. Nov. 6, 2007) (Jolly, Davis, Wiener)

The Texas Penal Code has an offense called "Injury to a Child," which is defined as intentionally, knowingly, or recklessly causing bodily injury to a child, either by act or omission. In United States v. Gracia-Cantu, the Fifth Circuit held that injury by omission is not a "crime of violence" under 18 U.S.C. § 16(b), which includes felony offenses that by their nature "involve[] a substantial risk that physical force against the person . . . of another may be used in the course of committing the offense." Gracia-Cantu reasoned that because injury by omission can be committed by withholding food or medical care from a child, it does not necessarily involve a substantial risk of the use of physical force in order to commit the offense.

Perez-Munoz addresses the question Gracia-Cantu didn't: is injury by act, rather than by omission, a COV under § 16(b)? It answers that question "yes," relying on dubious reasoning.

Perez argued that injury by act can be committed by intentional acts that don't necessarily involve a substantial risk of physical force, such as by poisoning a child's food or drink. The court didn't disagree, but held that such a possibility is beside the point. Rather than relying on cases interpreting § 16(b)'s "substantial risk that physical force against [another] person . . . may be used in the course of committing the offense," the court cited cases interpreting the "serious potential risk of physical injury to another" language found in the ACCA's "violent felony" definition and guideline §4B1.2's "crime of violence" definition, including the Supreme Court's decision last term in James v. United States. From those cases, the court concluded that

[e]very intentional act causing injury to a child need not be violent for a violation of this part of the pared-down statute to be a crime of violence by its nature. As the Supreme Court stated in James: “[T]he proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” James, 127 S. Ct. at 1597 (emphasis added).

The court also said, without citing any authority, that

[a]lthough it may be possible to commit this offense by intentional act without the use of physical force (such as by placing poison in a child’s food or drink), this is not the ordinary, usual way the crime is committed. The crime, when committed by an act, is usually committed with the use of some force, or at least through conduct that presents the substantial risk that force may be used.

There are a couple of problems with the court's reasoning. First, it comes very close to eliding the critical difference between the § 16(b) risk-of-force language and the ACCA's and guideline §4B1.2's risk-of-injury language. One focuses on acts, while the other focuses on results, and that distinction can make all the difference in the world. Prior Fifth Circuit cases have avoided conflating the two types of risk. See, e.g., United States v. Houston, 364 F.3d 243, 247 n.5 (5th Cir. 2004).

Second, the risk-of-injury language does not exist in a vacuum in the ACCA or guideline §4B1.2. Instead, it's part of an "otherwise clause" that arguably should be read to include only offenses that entail a risk similar to that presented by specifically enumerated offenses found in those definitions (such as arson or extortion). Section 16(b), unlike §4B1.2 or the ACCA, does not list any specific COV's, so its risk clause lacks the same context found in those other two definitions. Thus, it's far from clear that ACCA or §4B1.2 cases are equally applicable to § 16(b) on the risk question.

Finally, keep in mind that there's a good chance the Supreme Court will provide some further guidance on the meaning of the ACCA's "otherwise clause" when it decides Begay v. United States later this term. The Court's decision in Begay may impact the shelf life of Perez-Munoz.

ACCA Enhancement Vacated Because Government Failed to Prove That One of the Three Prior Violent Felonies Was Counseled

United States v. Hollis, No. 06-50784 (5th Cir. Oct. 30, 2007) (Higginbotham, Smith, Owen)

Although brief, this opinion covers a lot of ground on three very interesting issues: 1) whether an Old Chief stipulation waived Hollis's right to collaterally attack the validity of an uncounseled prior conviction; 2) whether the Government proved that the prior conviction complied with Gideon, in the face of Hollis's testimony that he was indigent at the time of the prior conviction, that he did not have counsel, that the court never offered him counsel, and that he never waived counsel; and 3) assuming that the court decided an issue against Hollis in his first appeal, whether the manifest-injustice exception to the law of the case rule allowed the court to reconsider that issue on this appeal following resentencing. On the down side, all this makes for a fairly lengthy post. So I'll just summarize the opinion here, and leave the commentary for a future post, because I think it has broader implications for sentencing generally, and not just constitutional challenges to ACCA predicates.

Hollis was charged with being a felon and a fugutive in possession of a firearm. Both charges involved the same gun on the same occassion. At trial, Hollis stipulated that he had been convicted of a felony in South Carolina in 1963. The jury found him guilty. At sentencing, the court applied an ACCA enhancement after finding that Hollis had three prior violent felony convictions, including the 1963 South Carolina conviction.

In his first appeal, Hollis argued that 1) one of his convictions must be vacated, because under United States v. Munoz-Romo, a conviction for being a felon-in-possession and a fugitive-in-possession cannot both rest on possession of the same gun on the same occasion, and 2) it was unclear which of his prior convictions served as the predicates for the ACCA enhancement. The Government conceded the first issue, and asked for a remand on the second. The court of appeals granted the Government's motion to vacate and remand for resentencing in a brief order, without addressing the Munoz-Romo argument.

At resentencing, there was no dispute that Hollis had two prior violent felony convictions. But he argued that his 1963 South Carolina conviction could not count as the third because it was obtained in violation of his Sixth Amendment right to counsel.

Hollis testified that he was not represented by counsel in that prior proceeding, was indigent, was not advised that he was entitled to appointed counsel, and did not waive his right to counsel. The government offered a document from the state prosecutor’s office (the “prosecutive summary”) that purported to reflect the name of an attorney representing Hollis and other defendants in at least one aspect of the case. The government also took the position that the stipulation regarding this prior offense foreclosed Hollis from collaterally attacking the 1963 conviction.

The district court concluded that Hollis's stipulation barred him from challenging the South Carolina conviction. It also concluded that the court of appeals had rejected Hollis's Munoz-Romo challenge in the first appeal, and imposed the same sentence on both counts as it had at the first sentencing. Hollis went back up.

The court of appeals first held that Hollis's the stipulation did not waive his right to collaterally attack the validity of the prior conviction. It concluded that the text of the stipulation, which said only that Hollis "was convicted" of the prior offense, did "not address [his] guilt or the truth of the charges." The stipulation also did not say that the conviction was constitutionally valid, and did not say that Hollis was waiving his right to collaterally attack the conviction. The court also rejected the Government's argument that a waiver could be inferred from the purpose of the stipulation; it instead observed that an Old Chief stipulation is simply an evidentiary avenue for avoiding a risk of unfair prejudice, and that Hollis's failure "to collaterally attack the prior conviction during the trial of his innocence or guilt does not foreclose a subsequent collateral attack during sentencing proceedings." Finally, the court refused to infer waiver under the Zales doctrine, which is limited to situations in which the defendant pleads "true" or "guilty" to an enhancement allegation. Zales didn't apply here because "Hollis has not pleaded 'true' or 'guilty' to the underlying offense or to the Armed Career Criminal Act enhancements. The stipulation in this case is not analogous in purpose or effect to a 'true' or 'guilty' plea: the purpose of Hollis’s stipulation is to avoid prejudice to the jury."

Having found no waiver, the court then turned to Hollis's Burgett argument:

The district court relied upon the waiver theory in ruling on Hollis’s challenge to his 1963 conviction, and the court made no factual finding as to whether Hollis had counsel for that conviction. In Mitchell [v. United States, 482 F.2d 289 (5th Cir. 1973)], we set forth the burdens and standards of proof when a defendant alleges that a prior conviction was unconstitutionally obtained because of lack of representation:

[W]hen a convicted defendant who was indigent at the time of his conviction collaterally attacks the conviction on right-to-counsel grounds, and the record shows that he was not represented by counsel or is silent regarding representation of counsel, then the party which defends the conviction has the burden of proving that the defendant was represented by counsel or that he waived his right to counsel. Conversely, if the record of the conviction under collateral attack shows that the defendant was represented by counsel, the convicted defendant has the burden of impeaching the record.

The government argues that the prosecutive summary is evidence showing that Hollis was represented by counsel and therefore that the burden was upon Hollis to impeach that record at sentencing. But the prosecutive summary does not show what the government claims it does. It shows, at most, that Hollis and his co-defendants were represented by an attorney at their bond hearing hours after they were apprehended on May 14, 1963. Although the word “guilty” appears on the document, it has no information regarding a trial or plea proceeding. It does not reflect that Hollis was represented by counsel when convicted or that he validly waived his right to counsel.

Because the government has not established three counseled predicate felonies, the sentence must be vacated and Hollis must be re-sentenced.

Finally, the court reached the Munoz-Romo issue. (Strangely, Hollis didn't raise it in this second appeal; it was the Government who asked the court to vacate one of the convictions.) The court assumed without deciding that it rejected this argument the first time around, which meant that it could not revisit the issue unless one of the three exceptions to the law of the case doctrine applied. It held that the third exception --- that "the earlier decision is clearly erroneous and would work a manifest injustice" --- applied here:

In this case, Munoz-Romo unequivocally prohibits Hollis’s simultaneous conviction for Counts One and Two. If our opinion in the first appeal decided that issue and allowed both convictions to stand, it was “dead wrong” under our earlier decision in Munoz-Romo. Allowing an invalid conviction to stand would work manifest injustice. . . . In these unique circumstances, in which the government, in the interest of justice, urges us to vacate a defendant’s criminal conviction because it is foreclosed by this court’s prior precedent, it would be clear error and manifest injustice to allow the conviction to stand. We will grant the government’s request to vacate Count Two.

Stay tuned for commentary.