DWI Held to be a Qualifying ACCA Prior

U.S. v. Begay, --- F.3d ----, 2006 WL 3598297 (10th Cir. December 12, 2006)

The 10th upheld the district court’s determination that felony driving while intoxicated is a violent felony under the Armed Career Criminal Act (ACCA). Defendant pleaded guilty to felon in possession of a firearm. He had 12 DWI convictions, three of which were felonies under New Mexico law. The Tenth held that DWI is a violent felony under the ‘otherwise involves conduct that presents serious potential risk” provision in ACCA, § 924(e)(2)(B)(ii). To get the full flavor of the reasoning, read the opinion and McConnell’s compelling dissent.

The district court did err in regarding itself bound by the advisory guideline sentence if it was a reasonable sentence (the court imposed the advisory guideline sentence, which was 8 months longer than the mandatory ACCA 15 years, which was the sentence urged by the Defendant in the alternative). The 10th reminds us that there can be a range of reasonable sentences both within and outside of the guidelines. Moreover, the Tenth added a glitch on to the notice-at-sentencing law: the Defendant did not have any notice that the court would interpret Booker in so novel a fashion and therefore, was excused from not objecting at the time of sentencing.