Following on the heels of yesterday’s post on United States v. Smith, the Seventh Circuit issued another opinion considering the use of prior convictions to enhance a sentence. In United States v. Jennings, the court held that an Indiana conviction for resisting a law enforcement officer could be considered a “crime of violence” for purposes of a career offender enhancement under the federal sentencing guidelines. As I explained yesterday, the Supreme Court’s recent decision in Begay v. United States has altered the framework courts must use in determining whether a prior conviction counts as a crime of violence. In Smith, the Seventh Circuit interpreted Begay such that a crime of negligence and recklessness, even though it may result in serious injury, can no longer be considered a “violent felony” for purposes of the Armed Career Criminal Act. Although Begay (like Smith) involved an ACCA sentence enhancement, Jennings makes clear that the Begay standards also govern sentence enhancements under the career offender guideline. At the same time, Jennings seems to conduct the Begay analysis in a considerably less rigorous manner than Smith.
At issue in Jennings was the defendant’s prior conviction in Indiana for resisting a law enforcement officer. The Indiana statute contained no mens rea terms, in contrast to the statute in Smith. Indeed, the specific provision under which Jennings was convicted looks like a strict liability offense; it merely requires that, in fleeing a law enforcement officer, the defendant “operates a vehicle in a manner that creates a substantial risk of bodily injury to another person.” Yet, the Jennings court chose to look beyond the statory language and consider the charging document in the earlier case. No explanation was offered as to why this was an appropriate maneuver–curious in light of Smith‘s admonition that “we may not inquire into the specific conduct of a particular offender.” Although Smith noted that a charging document may be consulted in certain limited circumstances, Smith made clear that such an examination is “only to determine which part of the statute the defendant violated.” In Jennings, the court may have gone beyond this limitation, although it is hard to tell because the court’s analysis was so perfunctory. Here it is:
Jennings’s felony resisting-an-officer conviction required conduct that created a [quoting from the Indiana statute] “substantial risk of bodily injury to another person” by an act of vehicular fleeing from a police officer by [quoting now from the charging document] “speeding, ignoring traffic control devices, and thus endangering other drivers.” This version of the resisting-an-officer offense under Indiana law thus involves the sort of purposeful and aggressive conduct that the Court’s decision in Begay requires.
Not much explanation here: sort of reads like, “It is because we say it is.” If anything, the language from the charging document (“speeding, ignoring traffic control devices”) sounds to me like classic recklessness or negligence.
I can imagine ways to reconcile Smith and Jennings, but they still seem like ships passing in the night. It will be interesting to see whether future Seventh Circuit decisions more closely follow the “hard-look” approach exemplified by Smith or the easier acceptance of prior convictions exemplified by Jennings.
In addition to the sentencing discussion, federal criminal law practitioners in the Seventh Circuit will also want to read the court’s more extensive (and, in my view, more satisfying) treatment of the Fourth Amendment issues in Jennings. Briefly, drawing on Sixth and Third Circuit precedent, the court determined it was reasonable for police officers to detain Jennings as he entered a security perimeter surrounding an apartment where a narcotics search was underway. It was during that brief detention that police found Jennings in possession of crack cocaine, which formed the basis for his subsequent conviction and sentencing as a career offender.