Written by attorney Charles Albert Ross

The Supreme Court’s Treatment of the Residual Clause Of 18 U.S.C. §924(e)(1)(ii).



The Supreme Court’s Treatment of the Residual Clause

Of 18 U.S.C. §924(e)(1)(ii) under The Armed Career Criminal Act

As it Defines Violent Felony.


The Armed Career Criminal Act (“ACCA") imposes a mandatory minimum sentence of fifteen years in federal prison on felons who unlawfully possess a firearm and have three or more convictions for committing certain drug crimes or violent felonies. Over the past few years the Supreme Court has attempted to define what constitutes a “violent" felony for the purposes of sentencing enhancement under the ACCA. 18 U.S.C. §924(e)(1) sets out definitions for the types of felonies which qualify as warranting enhancement. However, the statutory definitions for what constitutes a “violent" felony have produced significant litigation. Indeed, at this point it appears that the Supreme Court, and thus the district courts and courts of appeal, will have to decide whether a particular offense is “violent" on a case-by-case basis.

Begay v. United States – Is Drunk Driving A “Violent" Offense?

In Begay v. United States, 128 S.Ct. 1581 (2008), the Supreme Court was confronted with whether or not three felony DUI offenses could qualify to enhance a felon in possession conviction and require the imposition of a mandatory minimum fifteen year sentence. The Court ruled that DUI offenses were not among those contemplated as violent felonies under the ACCA. Justice Breyer wrote for the majority which included Justices Roberts, Stevens, Kennedy, and Ginsburg. However Justice Scalia filed an opinion which concurred in the Court’s result but soundly criticized its approach. Three dissenters, Justices Alito, Souter and Thomas would have upheld the district and circuit courts and permitted felony DUI offenses to qualify as violent offenses.

Larry Begay pleaded guilty in federal district court in New Mexico to being a felon in possession of a firearm in violation of 18 U.S.C. §922(g)(1). Mr. Begay had previously been convicted of twelve DUI offenses. Under New Mexico state law after the third misdemeanor conviction for intoxicated driving, subsequent charges become felonies. At sentence, the government argued that three of Mr. Begay’s prior felony drunk driving convictions should require a mandatory minimum sentence of fifteen years in federal prison. The district court ruled that DUI offenses did qualify as violent offenses under the ACCA and the Tenth Circuit Court of Appeals upheld the sentence.

The Act defines a violent felony as follows:

“(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 use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." § 924(e)(2)(B) (2000 ed.)(emphasis added).

Begay includes three separate opinions. The decision comprises the majority opinion authored by Justice Breyer, a concurrence by Justice Scalia, and a dissent written by Justice Alito. The differences occur in the interpretation of the part of the clause after “otherwise" in subsection (ii).

The majority focused upon the list – burglary, arson, extortion and explosives offenses.

Scalia’s concurring opinion focused on “risk" and whether the “risk of serious physical injury to another" presented by the proposed predicate offense was roughly analogous to the risk presented by the listed offenses.

Scalia was pointedly critical of the majority. He reminded the Court of his dissent in James v. United States, 550 U.S. 192, 127 S.Ct. 1586 (2007)(Majority opinion holding that attempted burglary was a violent offense under the ACCA) in which he predicted that a drunk driving predicate offense would confound the lower courts. He stated;

“In my view, the best way to interpret § 924(e) is first to determine which of the enumerated offenses poses the least serious risk of physical injury, and then to set that level of risk as the “serious potential risk" required by the statute. Crimes that pose at least that serious a risk of injury are encompassed by the residual clause; crimes that do not are excluded. In my judgment, burglary was the least risky crime among the enumerated offenses, and I therefore concluded that attempted burglary, which is less risky than burglary, is not covered by the residual clause." Begay at 1589.

The dissent focused upon the inherent danger and risk presented by recidivist drunk driving offenders. Justice Alito stated;

“Statistics dramatically show that driving under the influence of alcohol is very dangerous. Each year, approximately 15,000 fatal alcohol-related crashes occur, accounting for roughly 40% of all fatal crashes. Approximately a quarter million people are injured annually in alcohol-related crashes. The number of people who are killed each year by drunk drivers is far greater than the number of murders committed during any of the crimes specifically set out in the statutory provision at issue here, § 924(e)(2)(B)(ii)-burglary, arson, extortion, and offenses involving the use of explosives." Begay at 1593.

The Court’s decision in Begay certainly seems to indicate that a case-by-case analysis is necessary. Whenever the residual clause comes into play, counsel, the government, the department of probation, and judges will be required to engage in an analysis of whether the proposed predicate offense qualifies as a violent offense under the ACCA.

Chambers v. United States – Failure to Report – An Easy No.

In January of this year, the Supreme Court decided Chambers v. United States, 129 S.Ct. 687 (2009) and held that a conviction for failure to report to prison could not qualify as a predicate offense under 18 U.S.C. 924(e). The Court began by reaffirming that the statute requires that courts look not to the offense as committed but rather to the crime in its “generic form". Thus, analysis always begins with a review of the particular statute in question.

In Chambers the Court reviewed an Illinois statute which set forth a variety of conduct which included escape from a penal institution, failing to report to an institution, failing to report for periodic imprisonment, failing to return from a furlough, failing to return from work and day release, and failure to abide by the terms of home confinement. Deondery Chambers pleaded guilty to failure to report to a penal institution. The district court found that this offense qualified as a violent felony and the decision was upheld by the Seventh Circuit.

The Supreme Court stated that it its view, Chambers had committed a separate offense which had nothing to do with escape. It stated;

“Conceptually speaking, the crime amounts to a form of inaction, a far cry from the “purposeful, ‘violent,’ and ‘aggressive’ conduct" potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion." Chambers at 682.

Thus, despite an effort to set standards of review for convictions which are proposed as predicate violent felonies to enhance firearms possession sentences, it appears clear that the Court will continue to address this issue on a case-by-case basis. Accordingly, it is important that counsel frame the issues early and provide support for any challenge to the underlying predicate offense. The focus should be upon how the offense in question does not present a risk of serious physical injury and is not purposeful, violent and/or aggressive.

Practice Suggestions

Since the potential for a substantial sentencing enhancement exists under §924(e) if a predicate felony offense qualifies as a violent crime every effort to challenge this determination should be made. The Supreme Court’s reasoning in Begay and Chambers can substantially assist counsel in devising strategies to attack proposed predicate felonies.

Any statistical reports or studies which demonstrate a lack of risk of serious physical injury in connection with the particular crime in question should be researched and utilized. Since the determination as to whether or not a particular offense is considered a “violent" offense is based upon the language of the statute and upon the crime in its generic form, counsel might try to seek a pre-pleading position from the department of probation.

In addition, counsel could seek permission to submit a pre-pleading memorandum to the Court and raise the issue in advance of the plea. Once again, since a sentencing court’s focus must be upon the language of the statute in question and the crime in its generic form, this would not amount to a resolution of the sentence in advance of the plea.

Finally, if none of these approaches work, counsel should submit an extensive sentencing memorandum which focuses the sentencing judge on the comparative lack of risk of serious physical injury to victims. Studies by sociologists, criminologists, and other experts should be reviewed and included if appropriate. Expert testimony on the issues could also be suggested and if compelling may persuade a sentencing judge that comparative risk is not substantial enough to deem the offense in question violent.


While the Supreme Court suggests in Begay and Chambers that it has devised a workable structure and standard for determining whether a given predicate felony conviction is “violent", district courts are left with a pretty vague and amorphous test which will continue to occur on a case-by-case basis. Counsel who recognizes this and assembles proof of a lack of comparative risk of serious physical injury in the commission of the generic crime as well as a lack of purposeful, violent, and aggressive conduct may have significant success in persuading sentencing judges not to impose mandatory fifteen year minimum sentences. Moreover, this through effort will make any appellate battle potentially more fruitful.

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