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Federal Sentence Enhancer, Armed Career Criminal Act – “Violent Felony”

Marcus Sykes v. U.S., USSC No. 09-11311, 6/9/11

It is a federal crime for a convicted felon to be in unlawful possession of a firearm. 18 U. S. C. §922(g)(1). The ordinary maximum sentence for that crime is 10 years of imprisonment. §924(a)(2). If, however, when the unlawful possession occurred, the felon had three previous convictions for a violent felony or serious drug offense, the punishment is increased to a minimum term of 15 years. §924(e). The instant case is another in a series in which the Court is called upon to interpret §924(e) to determine if a particular previous conviction was for a “violent felony,” as that term is used in the punishment enhancement statute. See James v. United States, 550 U. S. 192 (2007); Begay v. United States, 553 U. S. 137 (2008); Chambers v. United States, 555 U. S. 122 (2009) .

In this case the previous conviction in question is under an Indiana statute that makes it a criminal offense whenever the driver of a vehicle knowingly or intentionally “flees from a law enforcement officer.” Ind. Code §35–44–3–3 (2004). The relevant text of the statute is set out in the discussion below. For the reasons explained, the vehicle flight that the statute proscribes is a violent felony as the federal statute uses that term.

Any lessons for the state practitioner? Other than the idea that fleeing from an officer (§§ 346.04(3), 346.17(3)) might well be a violent felony for ACCA purposes? You might find interesting the particulars of the Court’s back-and-forth on the risk of violence (two separate dissenting opinions, including a typically spirited one from Scalia). Whether you find those particulars pertinent to state practice might be something else. But the Court’s methodology ought to be closely examined, with an eye toward pressing it into service in applying Wisconsin’s various enhancement schemes. James requires a “categorical approach” to the taxonomy: courts “look only to the fact of conviction and the statutory definition of the prior offense.” 127 S.Ct.at 1594 (quoting Taylor v. United States, 495 U.S. 575, 602 (1990)). In other words, courts aren’t to consider the “particular facts disclosed by the record of conviction. … [but instead look to the] elements of the offense . . . without inquiring into the specific conduct of this particular offender.” Id. (emphasis omitted). Therefore, the issue is how the crime is “generally committed,” not how the defendant actually committed it, or how it might be committed in extreme situations. Chambers, 129 S.Ct. at 690. Also: Begay, 128 S.Ct. at 1584 (“In determining whether [a] crime is a violent felony, we consider the offense generically, that is to say, we examine it 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.”); James, 127 S.Ct. at 1597 (“[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.”). The Court seems to have kept to that path today: “Risk of violence is inherent to vehicle flight. Between the confrontations that initiate and terminate the incident, the intervening pursuit creates high risks of crashes. It presents more certain risk as a categorical matter than burglary [which is itself an enumerated “violent felony”].”

Whether the Court’s assessment of this risk is accurate is less interesting than its reliance the “categorical approach” it employed – and the extent of its possible limits.

… When the law under which the defendant has been convicted contains statutory phrases that cover several different generic crimes, some of which require violent force and some of which do not, the “‘modified categorical approach'” that we have approved, Nijhawan v. Holder, 557 U.S. ___, ___, 129 S.Ct. 2294, 2302, 174 L.Ed.2d 22 (2009), permits a court to determine which statutory phrase was the basis for the conviction by consulting the trial record—including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms. …

Johnson v. United States, ___ U.S. ___, 130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (2010).

Various Wisconsin enhancers require that a foreign conviction be for a crime “comparable” or “similar” to some or another Wisconsin crime. Generally, there’s not much dispute, but if there is, how is the court to resolve it? The supreme court has indicated that “when Shepard and Apprendi are read together, a trial court judge, rather than a jury, is allowed to determine the applicability of a defendant’s prior conviction for sentence enhancement purposes, when the necessary information concerning the prior conviction can be readily determined from an existing judicial record,” State v. LaCount, 2008 WI 59, ¶52. Assuming that this represents the final word on who resolves the dispute, it may be worth keeping the determination properly cabined: “readily determined from an existing judicial record.” Did the court stay true to that principle yesterday? You be the judge.

Two very astute commentators criticize Sykes, from seemingly opposed angles: Josh Blackman doesn’t like the appellate use of statistical data to prove a point, here the majority’s heavy reliance “on empirical data”; while Michael O’Hear is equally distressed, but by the absence of “any sense that the government must prove dangerousness in a rigorous, empirical fashion.” It’s perhaps less important that two exceptionally capable academics might disagree about how the Court approached the problem, if indeed they do, than that they each have serious qualms about what the Court did. Both, interestingly, tout Scalia’s dissent, for different and not necessarily incompatible reasons – Blackman, because the use of data by appellate judges amounts to untested judicial fact-finding and skewed results; O’Hear, because the Court’s “ever-evolving interpretation” of ACCA denies fair notice of the scheme’s reach.

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