United States Court of Appeals For the Seventh Circuit
Sentencing — armed career criminals
A violation of Wis. Stats. Sec. 943.03, arson of property other than a building, is a violent felony under the Armed Career Criminal Act.
“Appealing to the oft-remarked ambiguity of the legal concept of ‘intent’—see, e.g., Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1530 (7th Cir. 1990) (describing it as ‘a chameleon, a puzzle, and possibly a chimera’); 1 LaFave, supra, § 5.2, pp. 340–44; Poulos, supra, pp. 410, 413–14—the defendant argues that ‘intending to’ could mean just ‘being aware of a risk of.’ Indeed it could. See, e.g., 1 LaFave, supra, § 5.2, p. 340, § 5.4(f), pp. 376–77. But we have just seen that the Wisconsin arson-to-buildings statute, interpreted in light of the Wisconsin understanding of ‘intentionally damages,’ requires more than awareness of a risk of injury—requires that the defendant have a practical certainty that the risk will materialize. Earlier we noted the absence from the federal arson statute of any requirement of proof of minimum value or damage, and now we add that we don’t consider our12 selves competent to specify such a minimum. To fix a dollar minimum, either of value or of damage, in order to draw a sensible line between arson of property (other than buildings) that is and that is not generic arson would be an arbitrary undertaking by a federal court. On what basis could a judge pick a number? If $100 is too low, is $5,000 too high? How is ‘too low’ or ‘too high’ to be determined? That is a legislative rather than a judicial task. See Hoctor v. USDA, 82 F.3d 165, 170–71 (7th Cir. 1996); Catholic Health Initiatives v. Sebelius, 617 F.3d 490, 495–96 (D.C. Cir. 2010); see also Henry J. Friendly, ‘The Federal Administrative Agencies: The Need for Better Definition of Standards,’ 75 Harv. L. Rev. 863, 869 and n. 34 (1962).”
Appeal from the United States District Court for the Western District of Wisconsin, Conley, J., Posner, J.