Drunk driving is a ‘violent felony’

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The Seventh Circuit held on Dec. 19 that drunk driving is a “violent felony” for purposes of the Armed Career Criminal Act (ACCA), notwithstanding the U.S. Supreme Court’s decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), that it is not a “crime of violence.”

The maximum penalty for possessing a firearm despite a prior felony conviction is 10 years’ imprisonment. However, if a defendant has at least three other “violent felonies,” the minimum term is 15 years, pursuant to the ACCA, 18 U.S.C. 924(e).

Roland C. Sperberg pleaded guilty in the Western District of Wisconsin to felon in possession, and Judge John C. Shabaz sentenced him to 210 months in prison, after finding that he had three prior violent felony convictions.

Sperberg appealed, contending that two of his previous felony convictions were not violent felonies, but the Seventh Circuit affirmed in a decision by Judge Frank H. Easterbrook.

Under the ACCA, “violent felony” is defined as “any crime punishable by imprisonment for a term 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 use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. 924(e)(2)(B).

The court first held that the district court properly found that Sperberg’s conviction for threat to injure or accuse of crime, in violation of Wis. Stats. sec. 943.30(1), constituted a violent felony.

In that case, Sperberg stole some lobster tails from a grocery store, and, while making his escape, he told the guard to get out of the way because he had a gun.

Affirming the district court’s conclusion, the court found, “The charge was that Sperberg threatened the guard, and during the plea colloquy the state judge said that the threat had been with a gun (the affidavit supporting the criminal information, and deemed part of the charge under state practice, says that Sperberg told the guard: ‘I’ve got a gun and I’ll shoot you’); Sperberg did not reply that he had instead threatened to accuse the guard of crime or vandalize his car. The district judge here looked no further than Shepard and Taylor allow; he did not turn to police reports or equivalent documents. The state judge let Sperberg off with a slap on the wrist, apparently thinking that Sperberg had been too drunk and high on other drugs to follow through, but this does not alter the nature of the crime. Sperberg’s conviction under sec. 943.30(1) has been classified correctly.”

The court also upheld the classification of the drunk driving conviction (Sperberg’s eighth) as a violent felony.

In United States v. Rutherford, 54 F.3d 370 (7th Cir.1995), the Seventh Circuit held that, because drunk driving poses serious risks to other motorists and pedestrians, it is a crime of violence within the meaning of U.S.S.G. 4B1.2(a)2), a provision with identical text to sec. 924(e).

Sperberg argued that Rutherford is no longer valid law, relying on Leocal, which held that drunk driving is not a “crime of violence” under 18 U.S.C. 16.

That statute defines “crime of violence” as “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the crime.”

Distinguishing Leocal, the court wrote, “The answer lies in the statutory language. … The outcome of Leocal turned on the way sec. 16 employed the word ‘use.’ The Court thought that to ‘use’ force is to apply it deliberately, which let out the offense of drunk driving — for although driving is deliberate, the application of force is not.

Section 924(e)(2)(B)(ii), by contrast, asks about consequences — is someone likely to be hurt? — rather than whether the offender deliberately applied force.

Rutherford therefore survives Leocal: materially different language justifies a different interpretation.”

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The court acknowledged that, in Leocal, the Supreme Court cited with approval, the case of U.S. v. Doe, 960 F.2d 221, 225 (1st Cir. 1992), which stated that sec. 924(e) as a wh
ole “calls to mind a tradition of crimes that involve the possibility of more closely related, active violence.”

Nevertheless, the court chose to adhere to its interpretation in Rutherford, noting that the circuits are split on whether, after Leocal, felony drunk driving is a ‘violent felony’ under sec. 924(e)(2)(B)(ii).

In U.S. v. Moore, 420 F.3d 1218, 1224 (10th Cir. 2005), the Tenth Circuit held that it is; the Eight Circuit has held it is not. U.S. v. Walker, 393 F.3d 819, 828 (8th Cir.2005). However, the Eight Circuit has decided to reconsider the issue en banc. U.S. v. McCall, 397 F.3d 1028 (8th Cir.), rehearing en banc granted, 2005 U.S. App. LEXIS 7043 (argued Sept. 12, 2005).

The court concluded, “If we were to switch sides, it would more likely aggravate than eliminate a conflict. Rutherford shall remain this circuit’s position.”

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David Ziemer can be reached by email.