Attempted Burglary Is "Violent Felony" for ACCA Purposes
James v. U.S., --- S.Ct. ----, 2007 WL 1135524 (April 18, 2007 U.S.)
In a 5-4 decision, the Court ruled that an individual convicted of attempted burglary under Florida state law has committed a "violent felony" for purposes of 18 U. S. C. §922(g)(1), and was an Armed Career Criminal, requiring a mandatory 15-year sentence. The offense falls within the “otherwise involves” provision defining a violent felony in 18 U. S. C. §924(e)(2)(B)(ii). Also, nothing in the language of the provision prohibits attempt offenses from qualifying as ACCA predicates when they involve conduct that presents a serious potential risk of physical injury to another. Moreover, “Congress’ inclusion of a broad residual provision in clause (ii) indicates that it did not intend the preceding enumerated offenses to be an exhaustive list of the types of crimes that might present a serious risk of injury to others and therefore merit status as a §924(e) predicate offense.”
In summary, neither the statutory text nor the legislative history discloses any congressional intent to categorically exclude attempt offenses from the scope of §924(e)(2)(B)(ii)’s residual provision.
Under the Taylor/Shepard categorical approach, the Fla. attempted burglary statute offense elements are of the type that would justify its inclusion within the residual provision. (In a troubling blurring of the lines, the majority cites for support in how the Sentencing Commission defines violent felonies in the guidelines).
Alito wrote for the majority. With Alito in the majority were Chief Justice Roberts and Justices Breyer, Kennedy and Souter. Scalia wrote the dissent and was joined by Ginsburg and Stevens. Thomas filed a separate dissent.
Scalia sees a problem with the majority’s approach because its determination of which crimes fit within the residual provision is “almost entirely ad hoc.” There is no concrete guidance to lower courts “to ensure that the ACCA residual provision will be applied with an acceptable degree of consistency by the hundreds of district judges that impose sentences every day.” Scalia notes that the majority did suggest that the district court should compare the offense at issue with the “closest analog among the four offenses that are set forth (burglary, arson, extortion, and crimes involving the use of explosives), and should include the... offense within ACCA if the risk it poses is comparable.” He decries the indeterminancy of the approach, compares James to the decision in Leocal that DWI is not a COV, and exhibits exasperation with the vague "otherwise involves” language of the statute.
Signaling a significant due process concern, he writes: “Imprecision and indeterminacy are particularly inappropriate in the application of a criminal statute. Years of prison hinge on the scope of ACCA’s residual provision, yet its boundaries are ill defined.”
In an interesting exploration, Scalia posits that under the majority approach, if attempted burglary is compared to the least serious enumerated offense, which to Scalia is extortion, and the question is asked: does attempted burglary present as serious a risk as extortion?, then his answer would be “no”, and as a result, attempted burglary could not fit within the residual clause.
Thomas dissents on grounds that this is unconstitutional judicial fact-finding to raise a D’s sentence.
In a 5-4 decision, the Court ruled that an individual convicted of attempted burglary under Florida state law has committed a "violent felony" for purposes of 18 U. S. C. §922(g)(1), and was an Armed Career Criminal, requiring a mandatory 15-year sentence. The offense falls within the “otherwise involves” provision defining a violent felony in 18 U. S. C. §924(e)(2)(B)(ii). Also, nothing in the language of the provision prohibits attempt offenses from qualifying as ACCA predicates when they involve conduct that presents a serious potential risk of physical injury to another. Moreover, “Congress’ inclusion of a broad residual provision in clause (ii) indicates that it did not intend the preceding enumerated offenses to be an exhaustive list of the types of crimes that might present a serious risk of injury to others and therefore merit status as a §924(e) predicate offense.”
In summary, neither the statutory text nor the legislative history discloses any congressional intent to categorically exclude attempt offenses from the scope of §924(e)(2)(B)(ii)’s residual provision.
Under the Taylor/Shepard categorical approach, the Fla. attempted burglary statute offense elements are of the type that would justify its inclusion within the residual provision. (In a troubling blurring of the lines, the majority cites for support in how the Sentencing Commission defines violent felonies in the guidelines).
Alito wrote for the majority. With Alito in the majority were Chief Justice Roberts and Justices Breyer, Kennedy and Souter. Scalia wrote the dissent and was joined by Ginsburg and Stevens. Thomas filed a separate dissent.
Scalia sees a problem with the majority’s approach because its determination of which crimes fit within the residual provision is “almost entirely ad hoc.” There is no concrete guidance to lower courts “to ensure that the ACCA residual provision will be applied with an acceptable degree of consistency by the hundreds of district judges that impose sentences every day.” Scalia notes that the majority did suggest that the district court should compare the offense at issue with the “closest analog among the four offenses that are set forth (burglary, arson, extortion, and crimes involving the use of explosives), and should include the... offense within ACCA if the risk it poses is comparable.” He decries the indeterminancy of the approach, compares James to the decision in Leocal that DWI is not a COV, and exhibits exasperation with the vague "otherwise involves” language of the statute.
Signaling a significant due process concern, he writes: “Imprecision and indeterminacy are particularly inappropriate in the application of a criminal statute. Years of prison hinge on the scope of ACCA’s residual provision, yet its boundaries are ill defined.”
In an interesting exploration, Scalia posits that under the majority approach, if attempted burglary is compared to the least serious enumerated offense, which to Scalia is extortion, and the question is asked: does attempted burglary present as serious a risk as extortion?, then his answer would be “no”, and as a result, attempted burglary could not fit within the residual clause.
Thomas dissents on grounds that this is unconstitutional judicial fact-finding to raise a D’s sentence.
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