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Reckless crimes are not ‘violent felonies’

The Seventh Circuit Court of Appeals is notoriously loathe to hear cases en banc. Faced with a thorny issue dealing with the Armed Career Criminal Act (ACCA) and the career offender enhancement, on which two separate panels had split, the court has come up with a novel way to avoid an en banc hearing.

The two opposing opinions were circulated to all the judges on the court, and the one that received the most support was used to decide both cases, and became the law of the circuit.

At issue was the proper methodology for determining when a crime which only requires recklessness, not specific intent, qualifies as a “violent felony” under the ACCA, 18 U.S.C. 924(e), or the career offender enhancement, U.S.S.G. 4B1.1 (the definition is the same for both).

A majority of the court concluded that, in determining whether a prior conviction is a crime of violence, courts should look to whether the statute is “divisible.”

A crime is “divisible” if it prohibits both violent and nonviolent conduct, but the statute delineates between them, so it can be determined without judicial fact-finding whether the prior conviction is a violent felony or not.

Involuntary manslaughter

In the first case, U.S. v. Woods, the issue was whether or not Vernon Woods’ prior Illinois conviction for involuntary manslaughter was a crime of violence. The charge resulted from the death of an infant for whom Woods was babysitting, and the state and Woods differed as to how the death occurred.

The judges concluded that involuntary manslaughter in Illinois is not a crime of violence, because the statute prohibits the reckless, but unintentional, killing of an individual without lawful justification.

To determine whether Woods’ actions were in fact intentional would require independent fact-finding.

Judge Diane P. Wood wrote for the court, “In short, the additional materials permitted … may be used only to determine which crime within a statute the defendant committed, not how he committed that crime (emphasis added by court).”

By way of explanation, the court contrasted the Wisconsin statute for escape from custody, and a Massachusetts breaking-and-entering statute.

The Wisconsin escape statute covers a wide variety of escapes, some violent (prison breakout), and some not (walk away from halfway house), but does not delineate the various ways it can be broken.

The court wrote, “Rather than specifying various subcategories of conduct, it simply states that ‘escape’ is an offense and defines ‘escape’ broadly to mean ‘leave [custody] in any manner without lawful permission or authority.’”

In contrast, Massachusetts’ breaking and entering statute applies to breaking into a “building, ship, vessel or vehicle.” Only breaking and entering a building counts as a “violent felony” under federal law. But it can be determined from the complaint whether the defendant committed a violent felony or not, depending on whether it alleges entry into a building, or something else.

The court wrote, “The point is that the statute itself is ‘divisible’ — that is, it expressly identifies several ways in which a violation may occur.”

Turning to Woods’ involuntary manslaughter conviction, the court held that, because it only requires a finding of recklessness, it cannot constitute a “violent felony” for federal sentencing purposes.

Reckless endangerment

The second case turned on whether a conviction for second-degree recklessly endangering safety under Wisconsin law is a “violent felony.” A majority of the three-judge panel who heard the case concluded that it could be.

The court noted that the crime could be committed either by twirling a loaded gun like they do in movies (non-violent behavior); or by deliberately shooting at a passing car (violent behavior). The majority felt that, if the evidence supported the latter case, the conviction could be counted as a violent felony.

However, treating the other panel’s opinion in Woods as binding, it held that the defendant, John High, could not be sentenced as an armed career criminal, because the statute is not divisible.

“Only when an offense is divisible may a court examine the charging papers and plea colloquy to classify the conviction,” the per curiam opinion states.

The dissent

An explanation of the dissenters’ view — that the presence or absence of “divisibility” in a state criminal statute is an arbitrary distinction — is found in the Woods opinion, even though the three dissenting justices were not part of that panel.

Noting that state legislatures don’t draft criminal statutes with federal sentencing law in mind, Judge Frank H. Easterbrook asked for the dissenters, “How can homicide NOT be an intentional, violent, and aggressive act? How can it be that burglary is a crime of violence, even though people rarely are injured in burglaries, and homicide is not, even though a person’s death is an element of the offense?”

Analysis

The dissent in Woods purports to defend the unusual procedure followed in these cases as consistent with Circuit Rule 40(e), but it is questionable whether this is accurate.

The dissent states, “the six judges on [the two panels] do not agree …, so proposed opinions in two cases were circulated to the full court under Circuit Rule 40(e). We decided to resolve the disputes through this circulation, without argument en banc. The approach proposed by the panel in Woods has the support of a majority and becomes the law of the circuit.”

Circuit Rule 40(e) provides, “Rehearing Sua Sponte before Decision. A proposed opinion approved by a panel of this court adopting a position which would overrule a prior decision of this court or create a conflict between or among circuits shall not be published unless it is first circulated among the active members of this court and a majority of them do not vote to rehear en banc the issue of whether the position should be adopted. In the discretion of the panel, a proposed opinion which would establish a new rule or procedure may be similarly circulated before it is issued. When the position is adopted by the panel after compliance with this procedure, the opinion, when published, shall contain a footnote worded, depending on the circumstances, in substance as follows:

‘This opinion has been circulated among all judges of this court in regular active service. (No judge favored, or, A majority did not favor) a rehearing en banc on the question of (e.g., overruling Doe v. Roe.)’”

Clearly, nothing in the text of this rule authorizes the court to employ the procedure it did in this case. Had a majority of judges gone the other way and found in favor of the government, the defendant in U.S. v. Woods would have had a good argument that the procedure violated his rights.

The Seventh Circuit’s rules provide, if a majority of the judges agree, for hearing by an en banc panel. However, nothing in the rules permit cases to be decided based on the votes of judges who did not even hear the case.

Any defendant who convinced three judges that his sentence was unlawful, only to have the sentence affirmed based on votes by judges who did not hear his case would have not just a strong statutory argument, but a plausible due process argument, that the affirmance of his senten
ce was invalid.

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