Begay v. U.S.

In a little-noticed case accepted for review earlier this Term, the Supreme Court has agreed to decide whether drunk driving can be considered a "violent felony" for purposes of sentencing under the federal Armed Career Criminal Act.

New Mexico resident Larry Begay has been pursuing the legal challenge since he was sentenced in for being a felon in possession of a firearm. Begay was arrested in September 2004, after brandishing a rifle while begging his sister for money. When she told him she had none, he pulled the trigger several times but failed to shoot the weapon. Begay eventually fell asleep, and when police came to investigate his sister's report the next day, they found a .22 caliber rifle under a mattress in his room.

In addition to his guilty plea for possessing the rifle, Begay had twelve previous convictions for driving while intoxicated. Under New Mexico law, every DWI conviction after the first three is considered a felony. Examining Begay's multiple DWI felony convictions, the district court concluded that each was a "violent felony," triggering the federal career criminal law's 15-year mandatory minimum sentence.

The Tenth Circuit Court of Appeals agreed that the DWIs were violent felonies. The majority of the panel reasoned that drunk driving fits within the statute's definition of a "violent felony" as "any crime . . . that . . . involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. Sec. 924(e). The panel observed that Congress had made a choice in drafting the career criminal act to hike prison terms for those whose history reflected an ongoing "contempt for human life or safety." United States v. Begay, 470 F.3d 964, 972 (10th Cir. 2006). Drunk driving, they reasoned, fit this category.

The 10th Circuit panel was deeply divided, with Judge Michael McConnell, a recent Bush appointee, dissenting. McConnell relied on a 2004 Supreme Court decision interpreting the term "crime of violence" in another portion of the criminal code as excluding drunk driving offenses. Leocal v. Ashcroft, 543 U.S. 1 (2004). In Leocal, the Court held that for purposes of the Immigration and Nationality Act, DWIs were not considered "aggravated felonies." Why? The crimes did not reflect purpose or action designed to injure others.

The Court's acceptance of the case will resolve a sharp conflict over the classification of drunk driving under the ACCA. The Seventh and Eighth Circuits have both held in recent years that such crimes do fall within the statute's purview. Moreover, the Fifth, Sixth, Seventh, Eleventh and Tenth Circuits have all reached the same conclusion when applying the identical language in the Sentencing Guidelines. Meanwhile, the First and Eighth Circuits have held that drunk driving is not a "violent felony."

The case also gives the Court another opportunity to refine its Booker line of Sentencing Guidelines jurisprudence. The district court in the case concluded that it could not depart downward from the Guidelines range because it was not unreasonable. The Tenth Circuit reversed that conclusion, explaining that because the Supreme Court declared the Guidelines merely "advisory" in Booker, the court was free to impose a sentence outside the Guidelines range so long as it was reasonable.

The Court is expected to hear argument in the case in the next several months.

In a little-noticed case accepted for review earlier this Term, the Supreme Court decided that drunk driving cannot be considered a "violent felony" for purposes of sentencing under the federal Armed Career Criminal Act.

New Mexico resident Larry Begay has been pursuing the legal challenge since he was sentenced for being a felon in possession of a firearm. Begay was arrested in September 2004, after brandishing a rifle while begging his sister for money. When she told him she had none, he pulled the trigger several times but failed to shoot the weapon. Begay eventually fell asleep, and when police came to investigate his sister's report the next day, they found a .22 caliber rifle under a mattress in his room.

In addition to his guilty plea for possessing the rifle, Begay had 12 previous convictions for driving while intoxicated. Under New Mexico law, every DWI conviction after the first three is considered a felony. Examining Begay's multiple DWI felony convictions, the district court concluded that each was a "violent felony," triggering the federal career criminal law's 15-year mandatory minimum sentence.

The Tenth Circuit Court of Appeals agreed that the DWIs were violent felonies. The majority of the panel reasoned that drunk driving fits within the statute's definition of a "violent felony" as "any crime . . . that . . . involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. Sec. 924(e). The panel observed that Congress had made a choice in drafting the career criminal act to hike prison terms for those whose history reflected an ongoing "contempt for human life or safety." United States v. Begay, 470 F.3d 964, 972 (10th Cir. 2006). Drunk driving, they reasoned, fit this category.

The 10th Circuit panel was deeply divided, with Judge Michael McConnell, a recent Bush appointee, dissenting. McConnell relied on a 2004 Supreme Court decision interpreting the term "crime of violence" in another portion of the criminal code as excluding drunk driving offenses. Leocal v. Ashcroft, 543 U.S. 1 (2004). In Leocal, the Court held that for purposes of the Immigration and Nationality Act, DWIs were not considered "aggravated felonies." Why? The crimes did not reflect purpose or action designed to injure others.

The Court's acceptance of the case will resolve a sharp conflict over the classification of drunk driving under the ACCA. The Seventh and Eighth Circuits have both held in recent years that such crimes do fall within the statute's purview. Moreover, the Fifth, Sixth, Seventh, Eleventh and Tenth Circuits have all reached the same conclusion when applying the identical language in the Sentencing Guidelines. Meanwhile, the First and Eighth Circuits have held that drunk driving
is not a "violent felony."

The case also gives the Court another opportunity to refine its Booker line of Sentencing Guidelines jurisprudence. The district court in the case concluded that it could not depart downward from the Guidelines range because it was not unreasonable. The Tenth Circuit reversed that conclusion, explaining that because the Supreme Court declared the Guidelines merely "advisory" in Booker, the court was free to impose a sentence outside the Guidelines range so long as it was
reasonable.

On April 16, a divided court reversed the Tenth Circuit's holding, ruling that "New Mexico's crime of 'driving under the influence' falls outside the scope of the Armed Career Criminal Act's clause (ii) 'violent felony' definition."

Justice Stephen G. Breyer wrote the majority opinion,

Justice Antonin Scalia filed a concurring opinion. Justice Samuel A. Alito Jr. filed a dissenting opinion, in which Justices David H. Souter and Clarence Thomas joined.