Douglas Berman was correct when he said that this decision is more important to your average federal criminal defense attorney than the lethal injection ruling in Baze. Here is the skinny: The United States Supreme Court has decided the Begay case in favor of the defendant/petitioner. As a result, convictions for felony drunk driving will no longer be allowed as predicate offenses for application of the Armed Career Criminal Act: 18 U.S.C. §924(e)(1).
The Court examined the language of the A.C.C.A. and found a conviction for felony drunk driving was outside of both clauses defining a violent felony:
...any crime punishable by imprisonment for a term not exceeding one year that:
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
The Court stated that it was "a given that DUI does not fall within the scope of the Act's clause (i) 'violent felony' definition". This was also the Decision of the District and Appeals Court, so no surprise.
The reversal came upon the examination of the "otherwise" language of clause (ii). The Court stated that while drunk driving undoubtedly "presents a serious risk of physical injury to another" it was "outside of the scope of clause (ii)" because drunk driving is too dissimilar to the Act's listed examples (Burglary, Arson, Extortion, or conduct involving the use of Explosives).
The majority did a fairly detailed analysis of statutory construction, history of the statute, and legislative intent. If you feel the need, I encourage you to read it. The bottom line for the majority is that because Congress gave specific examples in clause (ii), it intended that only crimes "roughly similar in kind, as well as in degree of risk posed" to be included as predicate offenses for the A.C.C.A. enhancement. Because drunk driving is not the same purposeful, violent, and aggressive conduct, as the listed examples, it is outside of the statute.
The majority was concurred with separately by Scalia, who takes a different path of statutory construction, but still ends up in the same place. Scalia's approach is to answer the question "Does drunk driving pose at least as serious a risk of injury to another as burglary?" (Which in his eyes has the least amount of risk of violence of the listed examples). Because he answers his own question "No.", Scalia also votes to reverse the Court of Appeals.
Alito writes the dissent and is joined by Souter and Thomas. Their statutory interpretation is much more on the plain language of the statute and they focus more on the harms caused by drunk driving. Because they say it is a serious offense that is "extraordinarily dangerous", it falls squarely in the residual clause of the statute.
John Messina from the Des Moines Federal Defender's Office feels that in addition to the win on this specific issues, Begay "effectively overturns the Eighth Circuit cases that treat drunk driving as a crime of violence for career offender (§ 4B1.1) and § 2K2.1 (firearms offenses) purposes". B. John Burns has also posted about the decision, and rightly points out the impact of this decision will be felt by many, many federal defendants. This is a big win for the defense bar.
Jake and I have an appeal pending in the 8th Circuit on the same issue as Begay . Our brief was filed a couple of weeks before Begay was argued. It looks like we will get a good result.
