Appealed from: United States Court of Appeals for the Seventh Circuit (Mar. 12, 2010)
RESISTING LAW ENFORCEMENT, VIOLENT FELONY, SIXTH AMENDMENT, ARMED CAREER CRIMNAL ACT
Faced with a prison sentence of more than fifteen years for committing three “violent felonies” under the Armed Career Criminal Act (“ACCA”), Marcus Sykes is challenging the Seventh Circuit Court of Appeals’ ruling that his conviction under Indiana law for fleeing from law enforcement officers in a vehicle constitutes a “violent felony.” Sykes argues that classifying his offense as a “violent felony” presumes that there is violence associated with flight from police. According to Sykes, such speculation by the courts may undermine the Sixth Amendment rights of individuals faced with a mandatory sentence enhancement and is inconsistent with the Supreme Court’s ruling that other offenses with a similar propensity for violence are not “violent felonies.” However, the United States contends that fleeing from police in a vehicle is both violent in nature and in practice, as it poses a risk of serious harm to law enforcement officers and members of the public. In light of this danger of violence, the United States believes that the Seventh Circuit properly treated vehicular flight as a “violent felony” under the ACCA. The Supreme Court’s decision would help resolve the disagreement between the Seventh and the Eleventh Circuit over this issue.
Whether using a vehicle while knowingly or intentionally fleeing from a law enforcement officer after being ordered to stop constitutes a "violent felony" under the Armed Career Criminal Act, 18 U.S.C. § 924(e).
Whether fleeing from a law enforcement officer in a vehicle is similar both in kind and in the degree of risk posed as the Armed Career Criminal Act's specifically enumerated felonies of burglary, arson, extortion, and crimes involving the use of explosives.
In 2008, police observed Marcus Sykes toss aside a gun after aborting his attempt to rob two individuals outside a liquor store in Indianapolis, Indiana. See United States v. Sykes, 598 F.3d 334, 335 (7th Cir. 2010). Police arrested Sykes for brandishing a gun, and Sykes subsequently pleaded guilty on July 22, 2008 to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See id. Because Sykes had three prior “violent felony” convictions—two in 1996 for robbery and one in 2003 for resisting law enforcement—the probation office stated in its presentence report that Sykes was subject to an enhanced sentence pursuant to the Armed Career Criminal Act (“ACCA”). See id. The ACCA, which lists offenses that are considered “violent felonies” and includes a residual clause to cover other violent offenses, requires a fifteen-year minimum prison sentence for individuals convicted under Section 922(g)(1) who have three or more prior “violent felony” convictions. See id.
In his objection to the sentencing enhancement, Sykes contended that his 2003 conviction for resisting law enforcement in a vehicle, a Class D felony under Indiana Code § 35-44-3-3(b)(1)(A), was not a “violent felony.” See Sykes, 598 F.3d at 335. According to the Presentence Investigation Report, on the night that Sykes was arrested for resisting law enforcement in 2002, police officers reported observing him drive a vehicle that had heavy front-end damage and no headlights on. See Brief for Respondent, The United States of America at 3. When police attempted a traffic stop, Sykes fled in the vehicle and drove on the wrong side of the road while weaving through traffic, and then maneuvered his vehicle through the yards of two residences before crashing into a third residence. See id.
The United States District Court for the Southern District of Indiana applied the ACCA’s enhancement provision and sentenced Sykes to 188 months of incarceration. See Sykes, 598 F.3d at 335. On March 12, 2010, the Seventh Circuit Court of Appeals affirmed the district court’s decision, holding that this case was legally and factually indistinguishable from United States v. Spells, in which the Seventh Circuit held that a conviction under Indiana Code § 35-44-3-3(b)(1)(A) was a “violent felony” pursuant to the ACCA. See id. at 336, 338. The Seventh Circuit ruled that the framework it had established in Spells was sound and workable, and thus declined to stray from its 2008 decision. See id. at 338. The Supreme Court of the United States subsequently granted certiorari on September 28, 2010. See Sykes v. United States, 131 S. Ct. 63 (2010).
Marcus Sykes argues that his 2003 conviction for resisting law enforcement by using a vehicle to flee is not similar to the types of violent offenses enumerated in the Armed Career Criminal Act (“ACCA”). See Brief for Petitioner, Marcus Sykes at 9–10. According to Sykes, the Seventh Circuit’s decision in United States v. Spells, which established that the offense at issue is a “violent felony” under the ACCA, disregarded Supreme Court precedent protecting the Sixth Amendment rights of individuals faced with an increased maximum statutory sentence. See id. at 4, 6–7, 12. Consequently, Sykes contends that when courts read the ACCA in a way that raises serious constitutional concerns—instead of interpreting the statute to avoid those constitutional problems—they risk violating Supreme Court decisions that favor prisoners’ rights. See id. at 12–13.
Furthermore, Sykes notes that the Supreme Court has held that driving under the influence—an offense comparable to fleeing from police in a vehicle because they both pose a risk of serious injury to others—is outside the ACCA’s definition of “violent felony,” and the Supreme Court should promote consistency in the law. See Brief for Petitioner at 10. In addition, Sykes argues that in failing to provide empirical data showing the potential risk of physical injury from fleeing from police in a vehicle, the government did not satisfy its burden of proving that the ACCA applied to his situation. See id. at 17. In the absence of such empirical data, courts can only speculate about the possible risk of injury, leading to uncertainty in the application of the law. See id. at 17–18. Overall, Sykes contends that if the Court upholds the Seventh Circuit, the resulting inconsistency and uncertainty may undermine the rights of individuals in Sykes’ situation. See id. at 13, 17–18.
In contrast, the United States of America argues that the risks associated with flight through the use of a vehicle are comparable in magnitude to the risks created by the enumerated crimes in the ACCA. See Brief for Respondent, The United States at 6. The United States notes that individuals committing the enumerated crime of burglary, for example, pose a serious risk of a violent confrontation with police. See id. Likewise, a fleeing suspect typically responds to the police in a violent manner, such as driving a vehicle dangerously to evade the pursuing police. See id. Therefore, the United States asserts that vehicular flight is violent in nature because the use of deliberate action to elude police inherently involves a confrontation with police. See id. at 7.
The United States also contends that when police are chasing a fleeing suspect, the pursuit raises the risk that innocent third parties will be physically injured. See Brief for Respondent at 6. Specifically, the crime has the potential to seriously harm law enforcement officers, passengers in the vehicle, other motorists, and bystanders. See id. According to the government, the Seventh Circuit’s consideration of the potential violence that occurs as a result of vehicular flight, either during the pursuit or afterwards, properly focuses on the serious risk of harm imposed upon the public. See id. at 7, 20. If the Court were to reject this approach and hold that fleeing in a vehicle is not a “violent felony” under the ACCA, the United States believes that the Court would be ignoring the violent nature and effects of this offense, which are comparable to the risks presented by ACCA’s enumerated crimes. See id. at 7, 21.
The consequences of refusing to acknowledge the violence associated with vehicular flight is that individuals like Sykes would escape the ACCA’s mandatory sentence enhancement, while individuals who commit comparably dangerous enumerated offenses, such as burglary, would be subject to the enhanced sentences. See Brief for Respondent at 21, 51. In order to respect Congress’s intention of imposing more severe penalties to career criminals with a propensity toward violence, the United States argues that the offense of resisting law enforcement using a vehicle should be recognized as a “violent felony.” See id. at 32–33.
Under the Armed Career Criminal Act (“ACCA”), a defendant with three "violent felony" convictions is subject to a mandatory fifteen-year minimum sentence. See Brief for Respondent, The United States at 2. Marcus Sykes, who was sentenced under the ACCA, concedes that he has two qualifying convictions, but contends that his Indiana conviction for intentional vehicular flight from a law enforcement officer (Indiana Code § 35-44-3-3(b)(1)(A)) does not fall under the residual clause within the ACCA's definition of "violent felony." See Brief for Petitioner, Marcus Sykes at 3, 5. The parties agree that the determination of whether an offense falls within the residual clause is a "categorical approach" that examines the conviction in light of its legal definition, not the crime's specific factual circumstances. See id. at 9; Brief for Respondent at 9. The parties also agree that the proper inquiry for determining whether Sykes' vehicular flight conviction is a "violent felony" under the ACCA is to ask whether it is both (1) similar in kind, and (2) similar in the degree of risk posed as the felonies specifically enumerated by the ACCA—burglary, arson, extortion, and crimes involving the use of explosives. See Brief for Petitioner at 9; Brief for Respondent at 8, 23. The parties disagree, however, over how to apply this two-part test.
Is Vehicular Flight Similar in Kind to the ACCA’s Enumerated Felonies?
To fall within the ACCA's "violent felony" residual clause, the Court must first find the offense in question to be similar in kind to the enumerated felonies. The United States argues that this requires a finding that the offense involves purposeful, violent, and aggressive conduct. See Brief for Respondent at 23. The United States further argues that vehicular flight meets this test. See id. at 24–25. First, the United States alleges that the conduct is necessarily purposeful because vehicular flight requires that the defendant act "knowingly or intentionally." See id. at 25. Sykes concedes this point. See Brief for Petitioner at 11.
Second, the United States argues that vehicular flight typically involves aggressive and violent conduct. See Brief for Respondent at 27. It alleges that this conclusion stems from the nature of the crime, which necessarily involves a driver's deliberate decision to flee from an officer. See id. at 29. The United States argues that the act of flight challenges the officer to try to capture the offender, thus endangering the officer. See id. at 29–30. Furthermore, the government argues that a driver is likely to take substantial risks while attempting to flee an officer, including speeding or driving on the wrong side of the road, and thus the confrontation has the potential to injure innocent passengers, other motorists, and pedestrians. See id. at 30–31.
Sykes argues, however, that this evaluation of potential risks that might arise from the crime is improper, and instead contends that the Court must only consider the conduct encompassed by the specific elements of the offense, which merely requires a failure to stop. See Brief for Petitioner at 12. Sykes alleges that because the vehicular fleeing offense contains no element of violent or aggressive conduct, the consideration of possible violent consequences improperly expands upon the elements of the offense. See id. Sykes offers an example of a driver who purposefully fails to stop, but continues driving in a safe manner to show that while this person may be guilty of vehicular flight, he is not acting aggressively or violently. See id. at 14. Additionally, Sykes reasons that a finding that conduct is potentially aggressive and violent is a factual determination leading to an increased prison sentence—a determination that must be made by a jury under the Sixth Amendment. See id. at 12–13.
The United States disagrees with Sykes’ analysis, contending instead that the focus is on the "conduct" involved in the commission of an offense, not the elements required for conviction. See Brief for Respondent at 34–35. Furthermore, the government argues that under the categorical approach it is not the risks created by the defendant's specific conduct that are at issue, but those created by the typical conduct in the ordinary case. See id. at 35. Therefore, the United States alleges that the determination of whether an offense in the ordinary case is violent and aggressive is a question of statutory interpretation, not a factual determination. See id. at 36. Accordingly, the government argues that there are no Sixth Amendment concerns, and the Seventh Circuit was well within its right to consider the potential consequences of injuries to pedestrians, innocent passengers, other motorists, and the pursuing officer, so long as these were likely consequences in the ordinary case of vehicular flight. See id. at 35–36.
Alternatively, Sykes argues that the vehicular flight offense does not encompass aggressive and violent conduct because under the Indiana Code there is a separate offense identical to vehicular flight, but that offense also involves operating a vehicle in a manner that creates a substantial risk of injury to another person as an element of the crime. See Brief for Petitioner at 14. Sykes contends that this alternative crime's existence reveals that the conduct encompassed by vehicular flight from police is unlikely to be violent or aggressive because an offender acting in such a way would likely be charged under the alternative offense. See id. at 15, 17. Sykes reasons that differentiating between the different types of flight was a conscious decision by the Indiana legislature, and the Court should respect that decision when classifying crimes under the ACCA. See id. at 15.
The United States disagrees, however, arguing that there are many reasons why a state might choose to charge someone under one statute and not the other, particularly since the two felonies in question here are both Class D felonies and are equally as serious. See Brief for Respondent at 45–46. Thus, the United States contends that the state may have chosen to prosecute Sykes for vehicular flight because it was easier to prove, since all that was required was that Sykes be driving a car when he fled the police. See id. at 46. Furthermore, even if the penalties were different, the fact that conduct might have been prosecuted another way is irrelevant because the categorical approach only requires an inquiry into the ordinary conduct constituting vehicular flight, and does not take into account any other separate or distinct offenses that may sometimes be available to prosecutors. See id. at 49.
Is the Degree of Risk Posed by Vehicular Flight Similar to that of the ACCA’s Enumerated Felonies?
Besides being similar in kind, a felony can only fall within the ACCA's "violent felony" residual clause if the Court finds that the degree of risk posed by it is similar to that of the enumerated felonies. Sykes argues that because the state presented no empirical evidence of the risks created by vehicular flight, it failed to meet its burden of proof. See Brief for Petitioner at 17. Without empirical data, Sykes contends that the degree of risk posed by vehicular flight is improper because it is left to judicial conjecture. See id. Therefore, Sykes argues that because this is a necessary element of the ACCA's residual clause, the enhanced sentence should not have been applied. See id. at 16–17.
The United States, while agreeing that the degree of risk must be similar to the enumerated crimes, argues that there is nothing to indicate that Congress intended the courts to make this judgment on empirical data rather than their experience and common sense. See Brief for Respondent at 15–16. The United States alleges that were empirical evidence to become a requirement, crimes that are clearly "violent felonies" might nevertheless not qualify under the ACCA because of a lack of statistical evidence. See id. at 16. Furthermore, the government argues that case law, media reports, statistical data, and common sense all tend to show that a person engaged in vehicular flight will ordinarily use any means necessary to escape, often endangering the pursuing officer, pedestrians, innocent passengers in the car, or other motorists. See id. at 15.
In this case, the Supreme Court will determine whether knowingly or intentionally fleeing a law enforcement officer in a vehicle constitutes a "violent felony" under the Armed Career Criminal Act. If the Court agrees with Marcus Sykes, then it will become more difficult to impose an increased sentence under the ACCA. Courts will be required to focus only on the elements of the offense, even if the typical defendant acts violently when committing the crime. On the other hand, if the Court agrees with the United States, courts will continue to be able to draw upon their judicial experience and outside information to determine whether a crime is a "violent felony," regardless of how its elements are defined by the legislature. Such an approach, however, risks enhancing a defendant's sentence despite the fact that the defendant may not have acted violently.
Edited by: Catherine Suh
· Life Sentences Blog, Michael O’Hear: Rethinking the Categorical Approach to the ACCA (Jan. 4, 2011)
· Wisconsin Law Journal Staff: High Court Accepts Five Criminal Cases (Oct. 1, 2010)