On Friday, in United States v. Smith, the Seventh Circuit held that a conviction in Indiana for criminal recklessness could not be used as a predicate offense for a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act. Ordinarily, felons found in possession of a firearm face a maximum sentence of ten years. However, the ACCA raises the minimum to fifteen years for felons who have at least three prior convictions for “a violent felony or a serious drug offense.” The Seventh Circuit’s decision to vacate Smith’s ACCA sentence last week illustrates the importance of Begay v. United States, in which the Supreme Court held that DUI does not count as a “violent felony” for ACCA purposes. Prior to April, when Begay was decided, Seventh Circuit precedent indicated that a felony conviction for criminal recklessness counted; now, in light of Begay, the Seventh Circuit has adopted a new approach.
Following Begay‘s lead, Smith states:
[A] finding that [an] offense poses a serious risk of physical injury to another is a necessary, but not a sufficient, condition for the offense to be included within the scope of ACCA’s [definition of “violent felony”]. The Government must also show that the predicate offense “typically involve[s] purposeful, violent, and aggressive conduct.”
Slip Op. at 8 (quoting Begay). The latter requirement, according to Smith, means that “those crimes with a mens rea of negligence or recklessness do not trigger the enhanced penalties mandated by the ACCA.” Slip Op. at 11.
So, how are we to know whether a prior conviction was for conduct that was merely negligent or reckless (as opposed to “purposeful”)? Smith indicates this is normally a matter of examining the formal elements of the crime (here, the offense of criminal recklessness, as established by Indiana law), and not of considering the specific facts of the defendant’s case. The Indiana crime, however, presented a difficulty, as it covered dangerous acts performed “recklessly, knowingly, or intentionally”–in other words, both purposeful and non-purposeful conduct. In such circumstances, Smith indicates, a court may look beyond the elements to the charging document, plea agreement, transcript of plea colloquy, or some other “comparable judicial record.” Slip Op. at 13. As to Smith himself, there was no formal admission or jury finding indicating that his prior convictions had involved knowing or intentional conduct; thus, the convictions could not serve as the basis for an ACCA sentencing enhancement.
For criminal defense lawyers, Smith should serve as a wake-up call (if one were needed) that much pre-Begay precedent on the scope of ACCA is now in doubt. Prior convictions for any offenses involving a mens rea short of purpose are at least arguably off limits as a basis for the fifteen-year mandatory minimum. (I say “arguably,” in part, because Smith does not clearly demarcate the line between qualifying and nonqualifying degrees of mens rea. Smith seems to treat the mens rea categories of purpose, knowledge, and intent interchangeably, but these terms are sometimes given diffent meanings in the law. For instance, the Model Penal Code defines knowledge as a distinct, and lower, form of mens rea than purpose. Thus, in light of language in Begay and Smith emphasizing “purpose” as the required mens rea, defendants might reasonably argue that a “knowledge” crime does not qualify. On the other hand, there is also some language in Smith suggesting that “knowledge” would suffice.)
For crimes that encompass multiple levels of mens rea, such as Indiana’s criminal recklessness, I wonder if prosecutors will sometimes attempt to built a record of heightened mens rea for later ACCA purposes, for instance by requiring defendants to stipulate to “purpose” (or another qualifying mens rea) in plea agreements or requesting special interrogatories at trial to determine whether the jury found a qualifying mens rea. On the other hand, I also wonder if there are judges who would balk at accepting a plea agreement that includes a mens rea stipulation showing the defendant was guilty of a much more serious crime than that to which he is pleading.