Supreme Court Update: Sykes v. United States (09-11311) and McNeill v. United States (10-5258)

June 29, 2011 Supreme Court Update

Greetings, Court fans!

The October 2010 Term officially ended yesterday, but we have plenty of decisions left to bring you. Our next two cases concern the Armed Career Criminal Act ("ACCA"), which imposes a 15-year mandatory minimum sentence for unlawful possession of a firearm by a person who "has three previous convictions . . . for a violent felony or a serious drug offense." (If you don't practice criminal law, you have our permission to sit this one out.)

Sykes v. United States (09-11311) is the latest in a series of cases analyzing whether a particular offense counts as a "violent felony" under the ACCA. An offense is deemed a violent felony if it is burglary, arson, extortion, or use of explosives (the "enumerated offenses"), "or otherwise involves conduct that presents a serious potential risk of physical injury to another" (the "residual provision"). Sentencing courts take a "categorical approach" in determining what falls within the residual provision. They look only to the fact of a prior conviction and the statutory definition of that offense, without inquiring into the specific conduct of the particular offender. So all you need to know is that Sykes had two convictions for robbery, which he did not contest were violent felonies, and a third conviction for vehicle flight under Indiana's "resisting law enforcement law." That statute makes it a felony to, among other things, use a vehicle to "flee[] from a law enforcement officer after the officer has, by visible or audible means, identified himself and ordered the person to stop." (Still, you might be curious – what was the specific conduct of our particular offender here? It appears that Sykes was driving without headlights, and refused to stop when the police tried to stop him. In the ensuing chase, he wove through traffic, drove on the wrong side of the road, and through yards containing bystanders, passed through a fence, and struck the rear of a house. He then fled on foot and was found only with the aid of a police dog.) The District Court found, and the Seventh Circuit agreed, that the vehicle flight conviction counted as a third violent felony.

The Court agreed as well. Justice Kennedy wrote for the 5-1-2-1 majority. Vehicle flight poses a risk that is comparable to that posed by its closest analog among the enumerated offenses, burglary. Perhaps even more so than burglary, vehicle flight gives rise to a risk of a confrontation leading to violence. Studies have shown that 4% to 17% of all chases result in an injury, and that approximately 100 people are killed in chase-related crashes each year. Indeed, the data shows that intentional vehicular flight is riskier than some of the ACCA's enumerated offenses, e.g., burglary and arson. The Court rejected Sykes' argument that vehicle flight is not necessarily "purposeful, violent, and aggressive," as the Court described crimes captured by the residual provision in Begay v. United States (2008). The Court used the phrase in Begay to analyze a DUI law, which was like a strict-liability, negligence, or recklessness crime. Vehicle flight under the Indiana statute, by contrast, has a mens rea requirement. The Begay phrase is not part of the ACCA's text, and in most cases, including this case, is redundant with the inquiry into risk. The Court also rejected Sykes' argument that Indiana law has separate provisions governing violent, and non-violent vehicle flight, and that he was convicted only under the non-violent provision. Subsection (b)(1)(A) of the statute provides that it is a Class D felony to "use a vehicle" to flee from an officer; subsection (b)(1)(B) provides that it is a Class D felony to "operate a vehicle in a manner that creates a substantial risk of bodily injury to another" while resisting or obstructing arrest or service of process or while fleeing from an officer. The overlapping and identical treatment of vehicle flight under the two subsections only reflects the Indiana legislature's judgment that vehicle flight cannot be committed without creating substantial risks.

Justice Thomas concurred in the judgment. Thomas largely agreed with the majority's assessment of the riskiness of vehicular flight, and provided even more statistics and cases to support that assessment. Thomas parted ways with the majority, however, where it implied that Begay's "purposeful, violent, and aggressive" test might still apply to offenses akin to strict liability, negligence, and recklessness crimes.

Justice Kagan, joined by Justice Ginsburg, dissented. There are many types of vehicular flights – from those in which the driver obeys all traffic laws but refuses to stop until there is a safe place to do so, to Hollywood-style police chases. Indiana recognized this spectrum by dividing vehicular flight into discrete categories: flight; flight creating a substantial risk of physical injury; flight resulting in physical injury; and flight resulting in death. Sykes was convicted under the section that covers flight alone; i.e., what is left over when no aggravating factor causing risk or harm exists. With blinders on, that section could be understood to include all kinds of flight, including the most dangerous kinds. But take those blinders off, and the subsection must be read as targeting mere (non-violent) failures to stop.

Justice Scalia wrote still another dissent. Scalia criticized the majority's "tutti-frutti" opinion, which referenced but did not precisely apply any of the tests previously developed by the Court for analyzing the ACCA's residual provision. He also criticized the Court's reliance on statistical analysis in ACCA cases as "untested judicial factfinding masquerading as statutory interpretation." Scalia has had it with trying to interpret the ACCA's residual clause: "Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. We should admit that ACCA's residual provision is a drafting failure and declare it void for vagueness."

The Court found more common ground in McNeill v. United States (10-5258), concerning what counts as a "serious drug offense" under the ACCA. The statute defines a "serious drug offense" to include a conviction for a state drug trafficking offense for which "a maximum term of imprisonment of ten years or more is prescribed by law." McNeill had prior convictions for assault with a deadly weapon and robbery, which he did not contest were "violent felonies" under the ACCA. He also had numerous convictions under North Carolina law for sale of cocaine and possession with intent to sell. At the time of his convictions, the offenses carried a 10-year maximum sentence, and McNeill in fact received 10-year sentences. McNeill nevertheless argued that none of his drug convictions counted as a "serious drug offense" under the ACCA because North Carolina had since reduced the maximum sentences for sale of cocaine and possession with intent to sell, to 38 months and 30 months, respectively. The District Court rejected this argument and relied on the sentences that applied to McNeill's offenses at the time he committed them. (In fact, not only did the District Court apply the ACCA 15-year mandatory minimum, it departed upward from McNeill's Sentencing Guidelines range and sentenced him to 25 years.) The Fourth Circuit affirmed. The Fourth Circuit looked to current North Carolina law, but determined that the reduced sentences did not reach back to the time of McNeill's offenses.

The Court affirmed unanimously, albeit along the lines of the District Court's reasoning, rather than the Fourth Circuit's. Justice Thomas wrote for the Court. The plain text of the ACCA requires the sentencing court to determine whether a "previous conviction" was for a serious drug offense. "The only way to answer this backward looking question is to consult the law that applied at the time of that conviction." McNeill argued that the present-tense "is" in the phrase "is prescribed by law" requires courts to look to the state law in effect at the time of sentencing. But that argument overlooks the fact that the ACCA is concerned with convictions that have already occurred. Moreover, McNeill's interpretation would lead to this anomalous result: between two defendants with the same criminal history who committed the same drug offense on the same day, then violated the federal felon-in-possession statute on the same date, one would get the ACCA 15-year mandatory minimum while the other did not, simply because their federal sentencing dates fell on either side of the change in state law. Looking to North Carolina law at the time of McNeill's drug offenses, six of those convictions counted as a conviction for a "serious drug offense" – more than enough to trigger the ACCA.

We'll be back soon with additional decisions and orders.

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400