Possessing Deadly Weapon in Prison is ACCA Violent Felony
U.S. v. Zuniga, 2009 WL 104304 (1/16/09) (Published) - The 10th expands the meaning of "purposeful, violent and aggressive" under the recent Supreme Court decision in Begay and, as a result, expand the kinds of offenses that are violent felonies under the Armed Career Criminal Act (ACCA), [and by extension "crimes of violence" under the Guidelines]. The 10th holds possession of a deadly weapon in prison is an ACCA violent felony.
(1) Following U.S. v. Romero, 122 F.3d 1334 (10th Cir. 1997), the 10th notes that, because a deadly weapon has no legitimate recreational uses in prison, the offense involves conduct that presents a serious potential risk of physical injury to another. Begay doesn't change that conclusion.
(2 ) Begay required that a non-enumerated offense must "typically involve purposeful, violent and aggressive conduct." The 10th found the offense in this case met all those criteria. (a) The offense conduct is purposeful. The offense can be committed knowingly, intentionally or recklessly. The 10th discounts the recklessly part because Begay refers to what the offense "typically" involves and "typically," the 10th surmises, the offense is committed knowingly or intentionally. It seems to me this "logic" skips an important part of the analysis. First, don't you have to undertake a modified categorical approach and find out if the relevant judicial documents indicate which mens rea is applicable? If you can't tell which one, aren't you supposed to assume it's reckless? That is precisely what the 10th decided in a case coincidentally titled U.S. v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008) in a ยง 2L1.2 "crime of violence" context. (b) The offense conduct is violent. What Begay meant by violent was the offense creates the "likelihood of violence." The offense indicates the defendant was "prepared to use violence." (c) The offense conduct is aggressive. To be aggressive the offense needs to be "offensive and forceful and characterized by initiating hostilities or attacks" or committed by one who is "inclined to behave in an actively hostile fashion." The latter phrase that broadens the meaning of "aggressive" enabled the 10th to include the offense in question as a violent felony. It also seems to open the violent felony door to all sorts of offenses.
(1) Following U.S. v. Romero, 122 F.3d 1334 (10th Cir. 1997), the 10th notes that, because a deadly weapon has no legitimate recreational uses in prison, the offense involves conduct that presents a serious potential risk of physical injury to another. Begay doesn't change that conclusion.
(2 ) Begay required that a non-enumerated offense must "typically involve purposeful, violent and aggressive conduct." The 10th found the offense in this case met all those criteria. (a) The offense conduct is purposeful. The offense can be committed knowingly, intentionally or recklessly. The 10th discounts the recklessly part because Begay refers to what the offense "typically" involves and "typically," the 10th surmises, the offense is committed knowingly or intentionally. It seems to me this "logic" skips an important part of the analysis. First, don't you have to undertake a modified categorical approach and find out if the relevant judicial documents indicate which mens rea is applicable? If you can't tell which one, aren't you supposed to assume it's reckless? That is precisely what the 10th decided in a case coincidentally titled U.S. v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008) in a ยง 2L1.2 "crime of violence" context. (b) The offense conduct is violent. What Begay meant by violent was the offense creates the "likelihood of violence." The offense indicates the defendant was "prepared to use violence." (c) The offense conduct is aggressive. To be aggressive the offense needs to be "offensive and forceful and characterized by initiating hostilities or attacks" or committed by one who is "inclined to behave in an actively hostile fashion." The latter phrase that broadens the meaning of "aggressive" enabled the 10th to include the offense in question as a violent felony. It also seems to open the violent felony door to all sorts of offenses.
posted by Anonymous at 9:29 AM
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