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The Supreme Court has ruled that driving under the influence is not a “violent felony” for purposes of the federal Armed Career Criminal Act, and neither is failure to report to prison or simple battery. But what about using a vehicle to flee from police after being ordered to stop? The answer is a very big deal to Marcus Sykes, whose Supreme Court challenge — Sykes v. U.S. — will be argued Jan. 12. And how the justices get to that answer is an equally big deal for criminals facing tough sentences and for courts struggling to determine what constitutes a violent crime under the law. The justices have issued seven Armed Criminal Career Act — or ACCA — decisions in the last five years, and it doesn’t appear that the flow of cases in the lower court pipeline will ease any time soon. The statute, first enacted in 1984 and then amended to its present form in 1986, requires a 15-year minimum sentence for repeat offenders convicted of possessing a firearm if they have three prior convictions for violent felonies. Sykes, who pleaded guilty to possession of a firearm in 2008, would ordinarily face a maximum of 10 years in prison for that crime. But he had three prior convictions, two of which his lawyer conceded qualified as ACCA predicates. Sykes challenges the third — a 2003 Indiana conviction for resisting arrest by using a vehicle to flee from police. The battle in the lower courts over applying the statute centers on whether a defendant’s three prior convictions fall within the meaning of “violent felony” or “serious drug offense,” which triggers the statute, according to David Holman of Kirkland & Ellis, who in a law review article last November, surveyed all ACCA decisions since the Supreme Court’s 2008 ruling in Begay v. U.S. “The Supreme Court has set out conflicting tests, not directly conflicting, but with enough conflicting language that lower courts can pick and choose which test to apply to reach the desired result,” said Holman. “[Lower courts] need to pick the path that most comports with the Sixth Amendment first, and the statute, second.” The statute says a felony is violent if it “has as an element the use, attempted use, or threatened use of physical force against the person of another;” if it “is burglary, arson, or extortion, [or] involves use of explosives,” or if it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” That last condition — known as the “residual” clause — is the source of ongoing controversy and litigation. The Supreme Court’s rulings in the last five years generally have benefitted criminal defendants as the justices have narrowed the reach of the statute. For example, in Taylor v. U.S. in 1990 and Shepard v. U.S. in 2005, the Court said district courts should apply a “categorical approach” to determine whether prior convictions trigger ACCA’s enhanced sentence. That approach requires judges to review only the language of the statute of conviction and certain limited judicial records, such as the charging document, the jury instructions, and the change of plea colloquy — elements proved beyond a reasonable doubt to a jury or admitted by the defendant. And in U.S. v. Begay in 2008, the Court held that to qualify as a violent felony under the residual clause of ACCA, the crime must be “roughly similar, in kind as well as in degree of risk posed,” to the statute’s examples of burglary, arson, extortion, and crimes that involve the use of explosives. The Court found that those example crimes “all typically involve purposeful, violent, and aggressive conduct.” In Begay, a dozen prior DUI convictions did not qualify. Former Sen. Arlen Specter (D-Pa.) was a critic of the Court’s decisions and introduced legislation last year to reverse their impact. “Few statutory sentencing issues have led to such costly and time-consuming litigation at every level of the federal court system as the determination of whether the broad range of criminal offenses under state and local law qualify categorically as crimes of violence or serious drug trafficking offenses,” said Specter in a floor statement on the legislation. “The [Supreme] Court obviously has been fairly receptive in recent years to claims by defendants that their prior convictions don’t count as ACCA predicates,” said criminal law scholar Michael O’Hear, associate dean of Marquette University School of Law. “In some ways, this line of cases has been surprising. It’s not like ACCA is a new statute. The key language has been around since 1986. You would have thought we would have had the disputes ironed out by end of the 1990s and yet here we are with an explosion of interest in the statute.” O’Hear suggested that the justices’ interest may be related to its Apprendi line of cases ( Apprendi v. New Jersey in 2000) in which the Court has held that the due process clause requires any fact that increases the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury and proved beyond a reasonable doubt. “ACCA is a particular source of interest because it’s right on the cusp of something that might or might not fall afoul of the Apprendi rule,” he explained. “It’s requiring an increase in the sentencing exposure but doing it on the basis of prior convictions, which has been carved out as an exception to the Apprendi rule. “But how wide is this exception? [ACCA] is really pushing the boundaries of this exception to Apprendi. That may be part of the reason the Supreme Court has gotten especially engaged in ACCA issues.” Holman would agree, noting that Justice Antonin Scalia — a leader of the Apprendi sentencing revolution — has been the most consistent of the justices in his analysis of ACCA. “He would view this as a follow-up to Apprendi and Booker ( U.S. v. Booker in 2005 which also struck down the mandatory nature of federal sentencing guidelines),” he said. Besides the Court’s effort to bring more restraint to ACCA’s application, O’Hear and Holman said another theme in the justices’ recent decisions has been a lack of clear guidance for the lower courts. “The Supreme Court is signaling, `Let’s take a more restrained approach,’ but isn’t telling lower courts how much to be restrained, how much of a paring back they should make,” said O’Hear. Begay and Chambers v. U.S. in 2009 involved different analyses, according to both men. Begay focused on the defendant’s state of mind — the purposeful, violent and aggressive behavior. Chambers produced a statistical analysis of the likelihood that not reporting to prison would produce injury. Not surprisingly then, Sykes and the United States argue their cases under both analyses with, of course, different conclusions on whether fleeing from the police in a vehicle qualifies as an ACCA predicate. “From the standpoint of the federal criminal justice system, this is a very important case,” said O’Hear, explaining that since the Clinton Administration, there has been a huge emphasis on prosecuting felons in possession of firearms, the key to entering the ACCA realm. “It just seems like there is a never ending supply of federal appellate decisions on ACCA,” he said. “I’m sure there are lot of cases affected by this. These charges also are often used as bargaining chips by federal prosecutors, so a lot of cases are out there that are not actually prosecuted under ACCA but are still profoundly affected by the statute.” Marcia Coyle can be contacted at [email protected].

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