In a series of posts (e.g., here and here), I have been tracking the fallout in the Seventh Circuit of the Supreme Court’s decision in Begay v. United States, 128 S. Ct. 1581 (2008). Begay adopted a new approach for deciding when former convictions count as “crimes of violence” that trigger the fifteen-year mandatory minimum sentence of the Armed Career Criminal Act.
Earlier this week, the Seventh Circuit had another in its increasingly long line of post-Begay decisions holding that this or that specific offense does not fit the new definition of “crime of violence.” More specifically, in United States v. McDonald (No. 08-2703) (Sykes, J.), the court held that first-degree reckless injury (in violation of Wis. Stat. § 940.23) and second-degree sexual assault of a child (what would be colloquially called “statutory rape,” in violation of Wis. Stat. § 948.02(2)) do not count as crimes of violence.
To be precise, McDonald dealt with the application of § 2K2.1 of the sentencing guidelines, not the Armed Career Criminal Act. However, as the court observed, the guideline’s definition of crime of violence is “materially identifical” to that of the statute, so it seems safe to assume that the holdings of McDonald would also apply to ACCA.
The McDonald holdings seem to flow quite logically from earlier Seventh Circuit cases that, in light of Begay, restrict crimes of violence to crimes with a mens rea of purposefulness. Interestingly, though, the question of whether statutory rape counts has produced a post-Begay circuit split, with the Second Circuit taking the opposite position from McDonald. See United States v. Daye, 571 F.3d 225 (2d Cir. 2009). The Fourth and Ninth Circuits, on the other hand, take the same position that the Seventh has now adopted. (I wonder how often the Fourth and Ninth Circuits — by reputation the nation’s most conservative and liberal, respectively — are on the same side of a circuit split. I would think any position agreed to by both of those circuits should be regarded as presumptively correct!)
And yet another “crime of violence” case from the Seventh Circuit this week: United States v. Dismuke (No. 08-1693) (Sykes, J.), http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=08-1693_004.pdf. In Dismuke, the court held that Wisconsin’s vehicular-fleeing offense does count as a violent felony. As the court discussed, the treatment of vehicular fleeing has provoked another post-Begay circuit split.
Here is another recent instance from the Seventh Circuit.