ACCA Case Analysis

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Although the court decided to reaffirm its holding in U.S. v. Rutherford, 54 F.3d 370 (7th Cir. 1995), that drunk driving is a “violent felony,” within the meaning of 18 U.S.C. 924(e)(2)(B)(ii) and U.S.S.G. 4B1.2(a)(2), defense attorneys should, at a minimum, raise the issue and preserve it, lest it be waived. Successfully preserving the issue is worth, at a minimum, five years in prison; in this case, the difference was 90 months.

Should the Eighth Circuit, en banc, reaffirm its holding in U.S. v. Walker, 393 F.3d 819 (8th Cir. 2005), the current split in the circuits will remain. Given the enormous difference in punishment that rests on resolution of the issue, the case for review in the U.S. Supreme Court would be compelling.

In its decision, the Seventh Circuit recognized a strong argument for defendants: the citation with approval, in Leocal v. Ashcroft, 543 U.S. 1 (2004), to U.S. v. Doe, 960 F.2d 221, 225 (1st. Cir.1992), which stated that sec. 924(e) “calls to mind a tradition of crimes that involve the possibility of more closely related, active violence” — a tradition in which drunk driving does not fit.

In citing Doe, the court in Leocal wrote, “we cannot forget that we ultimately are determining the meaning of the term ‘crime of violence.’ The ordinary meaning of this term, combined with sec. 16’s emphasis on the use of physical force against another person (or the risk of having to use force in committing a crime), suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses. Interpreting sec. 16 to encompass accidental or negligent conduct would blur the distinction between the ‘violent’ crimes Congress sought to distinguish for heightened punishment and other crimes (cite omitted).”

Despite the difference in language: “risk that physical force will be used” (18 U.S.C. 16); and “risk of physical injury to another” (18 US.C. 924(e)); the statement in Leocal holds equally true for “violent felony” as it does for “crime of violence.”

The court in Leocal gave another reason for its holding — the definition of “crime of violence” in sec. 101(h) of the Immigration and Nationality Act (INA): “(1) any felony; (2) any crime of violence, as defined in section 16 of title 18; or (3) any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime involves personal injury to another.’ 8 U.S.C 1101(h).

The court in Leocal cited the statute to support the conclusion that, “Interpreting sec. 16 to include DUI offenses … would leave sec. 101(h)(3) practically devoid of significance. As we must given effect to every word of a statute wherever possible, the distinct provision for [drunk driving offenses causing injury] under sec. 101(h) bolsters our conclusion that sec. 16 does not itself encompass DUI offenses (citation omitted).”

The statute, and the reference to it in Leocal, can be used in interpreting sec. 924(e), as well. Even in the INA, in which Congress intended the term, “crime of violence” to be broader than in sec. 16, it expressly included only drunk driving offenses that cause personal injury.

A good argument can be made that, if Congress intended “violent felony” to include all felony drunk driving offenses, even those not causing injury, it would have included an express provision that included drunk driving offenses, just as it did when it defined “crime of violence” in sec. 101(h)(3).

Admittedly, both sec. 101(h)(3) and sec. 18 use the term, “crime of violence,” while sec. 924(e) uses “violent felony,” so the argument would not be as strong as in Leocal. Nevertheless, sec. 101(h)(3) demonstrates that Congress clearly knows how to include drunk driving within the definition of a violent crime if it chooses.

Finally, it should be noted that, even if the above arguments are ultimately rejected, and the construction in U.S. v. Moore, 420 F.3d 1218 (10th Cir.2005), were to be adopted by the Supreme Court (or until then), it does not necessarily follow that all felony drunk driving convictions are “violent felonies.”

In Moore, the Tenth Circuit held, for the same reasons as did the Seventh Circuit in the case at bar, that, because drunk driving presents a “serious potential risk of physical injury,” it is a “violent felony,” within the meaning of sec. 924(e) and Leocal is distinguishable. Moore, 420 F.3d at 1221.

	Related Links 7th Circuit Court of Appeals Related Article Drunk driving is a ‘violent felony’

Nevertheless, the court remanded the case to the district court, finding the Nevada drunk driving statute ambiguous, because it included both actual drunk driving and “be[ing] in actual physical control of a vehicle on a highway or on premises to which the public has access.” Id., at 1219.

The court wrote, “Thus, [the Nevada drunk driving statute] also could penalize such nonviolent conduct as sleeping off a hangover inside a locked car in a public parking lot or other similar non-driving conduct we need not imagine. Sleeping in a car while drunk simply would not pose the same ‘substantial risk of injury’ that driving under the influence of alcohol does.” Id., at 1224.

Like Nevada, Wisconsin also criminalizes sleeping off a hangover inside a locked car in a public parking lot. Were a defendant to have been convict
ed of drunk driving in this manner, counsel should object to it being considered a “violent felony,” notwithstanding the case at bar.

– David Ziemer

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David Ziemer can be reached by email.