Begay v. US
From ScotusWiki
Authorship: Achyut Phadke
Contents |
[edit] Briefs and Documents
Docket: 06-11543
REVERSED in an opinion by Justice Breyer.
- Brief for Petitioner Larry Begay
- Brief for Respondent United States of America
- Reply Brief for Petitioner Larry Begay
Amicus briefs
[edit] Pre-Argument Articles
[edit] Grant write-up
The following entry was written by Achyut Phadke, a student in the Supreme Court Litigation Clinic at Stanford Law School.
Last Tuesday, the Court granted certiorari in two cases that will examine the range of predicate convictions that qualify a person for elevated sentences under the Armed Career Criminal Act of 1984 (the “ACCA”). The ACCA imposes a minimum 15 year sentence, and authorizes a term of life imprisonment, for a person convicted of being a felon in possession of a firearm if that person has been previously convicted on three separate occasions for a “violent felony” or “serious drug offense.” The act defines “violent felony” to include any adult crime punishable by at least one year’s imprisonment that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” This last clause is referred to as the “otherwise” or “residual” clause. The ACCA also defines “serious drug offense” to include offenses under state law “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.”
Begay v. United States asks whether a felony conviction for driving while intoxicated counts as a “violent felony” under the ACCA. The petitioner, Larry Begay, pleaded guilty in district court to one count of being a felon in possession. The government argued for an ACCA sentencing enhancement, offering three of Begay’s prior felony DWI convictions as predicate “violent felonies.” The district court granted the enhancement, holding that DWI fell under the residual clause, and raised Begay’s sentence to 188 months from the guidelines range of 41 to 51 months. The Tenth Circuit affirmed the enhancement, with Judge McConnell filing a dissent that argued that the tools of statutory construction supported a reading of the ACCA that excluded DWI convictions from counting as violent felonies.
In his petition for certiorari, Begay emphasized both the steep sentencing elevation that results when DWI is treated as a violent felony and the broad effect of such a ruling by the Court. All but three states have adopted felony DWI statutes and numerous circuits have either been faced with this question or with persons whose sentences were enhanced by virtue of sentencing guideline career offender provisions due to prior felony DWI convictions. Begay argued that the language, purpose and statutory history of the ACCA - as well as principles of statutory interpretation (ejusdem generis, noscitur a sociis, and the rule against surplus language) - support a reading that limits the residual clause to crimes that are similar to the crimes enumerated in the definition. He argues that the residual clause should be limited to crimes “that involve the possibility of more closely related, active violence,” relying for this characterization on the Court’s definition of “crimes of violence” in Leocal v Ashcroft (2004), which it took from then-Circuit Judge Breyer’s discussion of the ACCA residual clause in United States v. Doe (1st Cir, 1992). Since DWI is not such a crime, Begay asserts, it does not fall under the residual exception.
In its brief in opposition, the United States argued that the Court’s analysis last term in James v. United States (2007) rules out Begay’s arguments. The United States notes that in James, the criminal defendant had argued, based on ejusdem generis, that attempted burglary could not be included in the definition of “violent felony” because none of the enumerated crimes in the definition of violent felony were an attempt crime. The Court resisted such a limited reading. The United States adds that, in James, the Court rejected the defendant’s argument that the residual clause be limited to crimes that present “confrontational risk.” Rather, the Court looked to the elements of the attempted burglary offense to determine if it posed a serious potential risk of physical injury, and found that it did, thereby qualifying as a violent felony. The United States distinguishes Leocal because it involves a different statute and definition and dismisses United States v. Doe as merely dicta.
The other ACCA case, United States v. Rodriquez, asks whether a court, in determining whether a prior state drug conviction prescribed a sufficiently long maximum sentence to count as a “serious drug offense” under the ACCA, can look only at the maximum sentence named in the particular state drug statute or has to take into account a sentencing enhancement applicable to the case under a state recidivism statute.
After a jury trial, petitioner Gino Rodriquez was convicted of being a felon in possession of a firearm. The government sought to apply the ACCA enhancement, citeing as predicate offenses two convictions for burglary and a felony drug conviction under Washington state law. The particular drug statute under which Rodriquez was convicted lists a maximum sentence of five years, but an applicable recidivism statute for drug offenses permits doubling the sentence for a second or subsequent offense. Rodriquez had been convicted under that particular drug statute on three occasions, although the state of Washington had never applied the recidivism enhancement to increase his sentences. Nevertheless, the government argued in district court that because the applicable maximum sentence was 10 years for second and third drug offenses, one of those convictions counted as a “serious drug offense” under the ACCA.
The district court found the ACCA inapplicable, sentencing Rodriquez to 92 months of imprisonment followed by three years’ supervised release. The Ninth Circuit affirmed. It reasoned that the Washington recidivism enhancement did not factor in the ACCA analysis because the Supreme Court, in Taylor v. United States (1990), had declared that a court deciding sentencing enhancements “must consider the sentence available for the crime itself, without considering separate recidivist sentencing enhancements.” To hold otherwise, the Ninth Circuit argued, would be to make the offense and the recidivist enhancement “coterminous,” a result foreclosed by Apprendi v. New Jersey (2000), which stated that “recidivism does not relate to the commission of the offense.”
In its petition for certiorari, the United States argued that “a recidivist enhancement does not impose additional punishment for the prior crime,” but rather “is a stiffened penalty for the later crime, which is considered to be an aggravated offense because a repetitive one.” It asserts that Taylor requires a court to look at the elements of the applicable statute alone only when determining whether a crime qualifies as a “violent felony”; a court determining whether an offense is a “serious drug offense” is not required only to look at the statutory penalty without considering applicable recidivist enhancements.
The United States added that United States v. Labonte (1997) provides further support. There, the Supreme Court held that the Sentencing Commission erred when, applying a statute that required the Commission to provide sentences close to the maximum for certain recidivist offenders, it did not include applicable recidivism enhancements in its calculation of “maximum term.” The United States also argues that Apprendi, if anything, helps the government’s case, since the Court held there that only facts other than recidivism that increase a sentence are subject to independent Fifth and Sixth amendment procedural requirements. Finally, the United States argued that the Seventh Circuit and First Circuit directly with the decision below, which is in tension with decisions of Fourth Circuit and Fifth Circuit rules also.
Rodriquez disputed the existence of a circuit split, arguing that the Seventh Circuit was never squarely presented with this question, and that the decisions of the other circuits are distinguishable. Rodriquez also argues that the government’s rule acts as a “vague, one-way ratchet”: the particular facts of a case can be considered if they trigger a generally applicable recidivist sentencing enhancement but cannot be considered if they trigger a generally applicable law that decreases the sentence. Rodriquez asserts that such a rule does not comport with the legislative history, which indicates that Congress intended for the analysis of “serious drug offense” to occur without view to the particular facts of a case. Consequently, Rodriquez argued that Taylor’s directive to “look[] only to the statutory definitions of the prior offenses, and not to the facts underlying the prior convictions” applies here. Rodriquez cited additional support in Blakely and Apprendi’s view that the term “statutory maximum” refers to the maximum sentence applicable “solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”
[edit] Argument Preview
[edit] Petitioner’s Brief
In his brief on the merits, Begay argues that New Mexico’s felony DWI offense is not a “violent felony” because the ACCA’s residual clause only covers “violent, active property crimes that are typical of career criminals and that are more dangerous when committed with firearms” – a definition that does not include New Mexico’s felony DWI crime. Again citing Leocal and Doe, Begay first contends that the term “violent felony” limits the residual clause to “only violent, active crimes,” such as burglary, arson, and the other enumerated offenses. Second, the short title of the act, the “Armed Career Criminal Act,” suggests that the residual clause includes only “offenses committed by career criminals that become more dangerous when committed with a firearm,” a position corroborated by the legislative history of the act. Moreover, Begay notes, the ACCA’s structure indicates that the residual clause is limited to property crimes, as the two subsections of the definition of “violent felony” can be analyzed, respectively, as covering crimes involving physical force against a person, and crimes against property. Third, the legislative history also supports the view that the residual clause was aimed at property crimes.
Begay fleshes out his arguments from the cert. stage that several tools of statutory interpretation indicate that crimes covered by the residual clause must be similar to the enumerated offenses. He again points to the rule against surplus language, arguing that the court of appeals’ interpretation of the residual clause as covering “all crimes,” rather than merely crimes “similar” to the enumerated offenses, would render several parts of the statute superfluous: there would be no need for the statute to list the enumerated offenses, or for the statute to explicitly include serious drug offenses as predicate crimes, as those crimes would be covered by the more general language of the residual clause. He also again raises the canons of statutory construction – ejusdem generis and noscitur a sociis – in support of his position that the residual clause should be limited to offenses that are “similar” to the enumerated crimes.
Begay argues that the particular definition of felony DWI in New Mexico does not fall within the ACCA definition of violent felony. In New Mexico, DWI is a strict liability offense that covers anyone who i) has a blood alcohol content of 0.08 or is otherwise under the influence of alcohol and ii) is operating a motor vehicle. Begay contends that such a crime does not qualify as a “violent felony” because “no dangerous conduct of any sort or any other traffic code transgression is required” to violate the New Mexico law. Moreover, the lack of a mens rea requirement in the New Mexico statute precludes New Mexico’s felony DWI offense from qualifying as a violent felony. Begay also notes that felony DWI in New Mexico acts as a recidivist sentencing enhancement: the first three instances of DWI are treated as misdemeanors that are punishable for a term of less than a year, while subsequent offenses are felonies which carry an eighteen-month sentence. Raising a similar issue to that in Rodriquez, below, Begay argues that the recidivist enhancement is not an element of the crime and should not be considered when determining whether an offense qualifies as a violent felony; thus the court should only focus on the elements of the crime. Begay also argues that the Court should reverse because of the constitutional concerns about vagueness, separation of powers, and Fifth and Sixth Amendment procedural rights raised by the court of appeals’ interpretation of the residual clause, and because the rule of lenity counsels against giving the residual clause a broad scope.
[edit] Respondent’s Brief
The United States argues that because New Mexico’s felony DWI statute covers conduct that “presents a serious risk of physical injury to another,” the offense qualifies as a violent felony under the terms of the ACCA. As it did at the cert. stage, the United States emphasizes that the Court in James held that an offense did not have to be of the “same type” as the enumerated offenses to qualify under the residual clause of the ACCA. Citing data from the National Highway Transportation Safety Administration to support its contention that intoxicated drivers (and in particular repeat offenders) pose a “grave risk of physical injury,” the United States maintains that the risk of physical injury to another presented by recidivist felony DWI is comparable in degree and kind to the risk presented by the enumerated offenses. This argument has further support, the United States notes, in the actions of the Sentencing Commission: although numerous courts of appeals have interpreted Guidelines § 4B1.2(a)(2), which contains identical language to the residual clause, to cover felony DWI, the Sentencing Commission has not amended that section or repudiated the courts of appeals’ decisions, as it has in other contexts where it disapproved of courts of appeals’ interpretations of the Guidelines’ residual clause.
The United States disputes Begay’s construction of the New Mexico DWI statute, arguing that “[s]imply driving after consuming alcohol is not ‘driving under the influence’” under the New Mexico statute. Rather, “the central question . . . is whether alcohol has impaired the driver’s ability to handle an automobile safely”; thus the New Mexico statute covers “injury-risking behavior.” Moreover, the United States asserts, the analysis required by the Court’s precedent to assess whether an offense falls within the residual clause requires a court to look at “the ordinary case,” and does not require “that every conceivable factual offense covered by the statute . . . necessarily present a serious potential risk of injury before the offense can be deemed a violent felony.”
The United States also disputes Begay’s narrow interpretation of the residual clause. It notes that not all the enumerated offenses satisfy Begay’s interpretation: for example, arson and the use of explosives are not necessarily property offenses, nor are they necessarily offenses conducted by someone pursuing a criminal livelihood. Moreover, it argues that neither the legislative history nor the Court’s precedent limits the residual clause to offenses that are “similar” to the enumerated crimes. It again argues that the Leocal definition of crime of violence as an offense including “active violence” is irrelevant, because the statute in Leocal addressed the use of force, as opposed the “risk of injury”; active violence is not required for there to be a risk of injury. The United States adds that because Begay has not presented any ambiguity, there is no need to take recourse in legislative history or the canons of construction. Moreover, it argues that nothing in the legislative history suggests that Congress intended to limit the residual clause to property offenses or crimes of “career criminals” in pursuit of their livelihood. Instead, the United States posits, the drafting history suggests the opposite conclusion - the general residual clause was originally the only term in the relevant subsection of the definition of “violent felony,” while the enumerated offenses were added afterwards, suggesting that Congress did not intend to restrict the general term with the specific examples. Contrary to Begay’s argument that the ACCA was aimed at crimes that become more dangerous when committed with a firearm, the United States argues that that was the purpose of 18 U.S.C. 924(c), which provides a mandatory minimum sentence for use or possession of a firearm in furtherance of a crime of violence, but is not the purpose of the ACCA. The United States notes that the residual clause doesn’t exclude the New Mexico felony DWI statute for lack of a mens rea element, as the presumption of a mens rea requirement does not apply to recidivist sentencing provisions. It also disputes Begay’s assertion that the constitutional avoidance canon counsels reversal – arguing that James resolved these constitutional issues in favor of the government. It then concludes that the rule of lenity “is reserved for cases . . . involving a grievous ambiguity in the statutory text” and so has no application here.
[edit] Oral Argument Recap
[edit] Opinion Analysis
[edit] Links and further information
[edit] Podcasts
- Ohio State law Professor Douglas A. Berman analzyes the oral arguments in an 4-minute podcast [1]
