More From the Seventh Circuit on the Scope of “Crime of Violence”

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.

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Public Employee Enjoys Rare First Amendment Retaliation Success

First_amendment_3 From, comes this First Amendment retaliation case that reminds me of the old days of public employee free speech rights before the Garcetti decision of the U.S. Supreme Court eviscerated free speech protection for these employees in 2006.

Hughes v. Region VII Area Agency on Aging, 07-1570 (6th Cir. Sept. 8, 2008) considered the claims of a former public employee who alleged that she was fired for her conversations with a local newspaper reporter. Because defendants did not claim that she spoke in accordance with her official duties, Garcetti v. Ceballos, was found inapplicable.

Instead, the court concluded that the trial court was in error and the plaintiff spoke on a matter of public concern protected by the First Amendment when she discussed with a newspaper reporter issues concerning a number of incidents relating to the former executive director of the agency, including alleged sexual harassment, a lawsuit settlement, and other turmoil surrounding the agency.

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Seventh Circuit Narrows Reach of Armed Career Criminal Act

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.

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