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The Armed Career Criminal Act and \u00a7 4B1.1 of the federal sentencing guidelines both provide for lengthened prison terms for certain defendants with three or more prior convictions for crimes of violence.\u00a0 It’s clear that certain prior convictions qualify (e.g., rape and\u00a0armed robbery), but there are a surprisingly large number of offenses in the gray area between violent and nonviolent.\u00a0<\/p>\n
As I discussed in an earlier post<\/a>, the Supreme Court recently developed a new definition for “crime of violence” in Begay v. United States, <\/em>128 S. Ct. 1581 (2008), in which the Court held that prior DUI convictions do not trigger ACCA’s fifteen-year mandatory minimum.\u00a0 Begay <\/em>cast a lot of circuit-court precedent into doubt, and the Seventh Circuit has been struggling ever since to develop a consistent, coherent approach to identifying what types of offenses count as\u00a0“violent.”\u00a0 (See, for example, this post<\/a>.)\u00a0 Meanwhile, the Supreme Court has also remained active in this area.\u00a0 Last term, for instance,\u00a0the Court held that failure to report to prison\u00a0and walkaway escapes are\u00a0not crimes of violence in Chambers v. United States, <\/em>129 S. Ct. 687 (2009).\u00a0 And the Court recently granted cert in Johnson v. United States <\/em>to decide whether a battery offense counts as violent.<\/p>\n Reflecting the turbulence in this area of the law, the Seventh Circuit had three — count ’em, three —\u00a0notable new opinions dealing with the “crime of violence” question last week.\u00a0 <\/p>\n In one,\u00a0<\/em>United States v. Patterson <\/em><\/a>(No. 08-2240), the court (per Judge Flaum) held that transporting a minor for prostitution is<\/em> a crime of violence.\u00a0 But in another, United States v. High <\/a><\/em>(No. 08-1970), the court\u00a0(per curiam) held that second-degree reckless endangerment under Wisconsin law is not.<\/em><\/p>\n The most important of the three, though, was United States v. Woods<\/em> <\/a>(No. 07-3851).\u00a0 In Woods, <\/em>the court\u00a0(per Judge Wood) self-consciously sought to clarify the Seventh Circuit’s post-Begay<\/em>\u00a0approach to “crime of violence.”\u00a0 Reflecting\u00a0the opinion’s\u00a0importance, Woods <\/em>was circulated in\u00a0draft form to the full court.\u00a0 Seven judges approved\u00a0Judge Wood’s\u00a0opinion, while just three voted to hear the case en banc.\u00a0 (Chief Judge Easterbrook authored a thoughtful dissenting opinion on behalf of the three.)<\/p>\n Much of Woods <\/em>focuses on the so-called “categorical approach” developed by the Supreme Court for use in “crime of violence” cases.\u00a0 Under this approach, offenses are categorized as violent or nonviolent based not on the particular facts of the defendant’s conduct, but on the formal elements of the crime of which the defendant was convicted.\u00a0 For instance, a defendant\u00a0convicted of\u00a0failure to report to prison may have violently resisted police when finally apprehended, but the conviction would still count as nonviolent because all failure-to-report convictions are treated the same under the categorical approach, and the Supreme Court held in Chambers <\/em>that failure to report is not violent.\u00a0 The categorical approach has efficiency on its side; if sentencing judges had to evaluate the conduct underlying prior convictions, the result would be a great deal of collateral litigation regarding things the defendant may have done years earlier.<\/p>\n The big question with the categorical approach (which has produced a few seemingly inconsistent post-Begay<\/em> opinions in the Seventh Circuit) is under what circumstances the sentencing judge can look beyond the bare elements of the offense of conviction and consider such additional sources as the charging document, the plea agreement, and the guilty plea colloquy.\u00a0The Supreme Court has sometimes permitted recourse to such documents as a limited exception to the categorical approach, but the Court has\u00a0not clearly delineated the\u00a0scope of the exception.\u00a0 \u00a0<\/p>\n Woods <\/em>now clears up the matter in the Seventh Circuit: “[T]he additional materials . . . may be used only to determine which <\/em>crime within a statute the defendant committed, not how <\/em>he committed that crime” (10).\u00a0 Thus, the “expanded inquiry” may be made only when a defendant has been convicted under a statute that is “‘divisible’ — that is, expressly identifies several ways in which a violation may occur” (14).\u00a0 For instance, a single burglary statute will sometimes\u00a0list several different types of structures (house, vessel, garage, etc.)\u00a0whose unlawful entry constitutes the crime of burglary.\u00a0 The statute is thus divisible, and the additional materials may be consulted for the limited purpose of determining which type of structure the defendant entered.\u00a0 It is possible that burlary of certain types of structures would be treated as violent, while burlary of others would not.<\/p>\n Having clarified how to use the categorical approach, Woods <\/em>turned to the specific offense at issue, involuntary manslaughter under Illinois law (720 ILCS 5\/9-3(a)).\u00a0 The key language from the statute was:<\/p>\n A person who unintentionally kills an individual . . . commits manslaughter if his acts . . . which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.<\/p><\/blockquote>\n Because the statute did not specify different means by which it could be violated, it was not “divisible”; hence, the “expanded inquiry” was impermissible.\u00a0<\/p>\n In determining whether the elements of the statute\u00a0established a crime of violence,\u00a0Woods <\/em>reaffirmed the important holding of United States v. Smith, <\/em>544 F.3d 781 (7th Cir. 2008), that a crime is not violent if its mens rea <\/em>is merely negligence or recklessness.\u00a0 Because the key\u00a0mens rea <\/em>element of involuntary manslaughter is recklessness, the court determined that the offense was not a crime of violence.<\/p>\n The government tried to distinguish Smith <\/em>by arguing that the Illinois statute required that the defendant perform an intentional act; the recklessness requirement pertained only to the consequences <\/em>of the act.\u00a0 But, as anyone who has taken first-year Criminal Law should appreciate, the requirement of a volitional act is a basic requirement that applies to nearly all crimes.\u00a0 Thus, as the Seventh Circuit observed, the government’s reasoning would “obliterate[]” the “classic line that has been drawn between the actus reus <\/em>and mens rea <\/em>of a criminal offense” (23).\u00a0<\/p>\n Other new opinions in criminal cases last week were:<\/p>\n United States v. Williams <\/a><\/em>(Nos. 08-1470 & 08-1493) (Wood, J.) (reversing conviction because district court abused discretion in denying request for continuance).<\/p>\n United States v. Ramirez <\/a><\/em>(No. 08-3216) (Tinder, J.) (affirming conviction in wire fraud case over defendant’s objection that “ostrich instruction” was improper).<\/p>\n United States v. Aguilar-Huerta <\/a><\/em>(No. 08-2505) (Posner, J.) (“[W]e do not think a judge is required <\/em>to consider . . . an argument that a guideline is unworthy of application in any <\/em>case because it was promulgated without adequate deliberation.”).<\/p>\n United States v. Wescott <\/a><\/em>(No. 08-1211) (Rovner, J.) (holding that defendant in Section 922(g)(8) case may not “wage a collateral challenge to the predicate state court hearing”).<\/p>\n United States v. Jackson <\/a><\/em>(No. 08-2295) (Cudahy, J.) (holding that police had probable cause to arrest defendant and affirming sentence).<\/p>\n