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.”

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.

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.

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.

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.