Recklessness is insufficient to bring a prior offense within the definition of a “violent felony” under the Armed Career Criminal Act (ACCA).
On Sept. 12, the Seventh Circuit categorically held, “after [Begay v. U.S., 128 S.Ct. 1581 (2008)], the residual clause of the ACCA should be interpreted to encompass only ‘purposeful’ crimes. Therefore, those crimes with a mens rea of negligence or recklessness do not trigger the enhanced penalties mandated by the ACCA.”
As a result, an Indiana man convicted of being a felon in possession of a firearm, and sentenced to 240 months must be resentenced without application of the ACCA’s 15-year mandatory minimum.
Steven Smith was convicted in Indiana federal court. Three of his prior convictions were classified as violent felonies: a 2001 conviction for intimidation; a 2005 conviction for criminal recklessness with a deadly weapon; and a 2006 conviction for criminal recklessness.
Smith objected to inclusion of his two criminal recklessness convictions as violent felonies under the ACCA, but the district court disagreed, and sentenced him to 240 months.
Smith appealed, and in a decision by Judge Kenneth F. Ripple, the Seventh Circuit reversed.
The Indiana statute at issue made it a crime to “recklessly, knowingly, or intentionally” perform an act that creates a substantial risk of bodily injury to another.
The court concluded that the convictions did not fall within the ACCA, 18 U.S.C. 924(e), because, under Begay, the charge does not “otherwise involve conduct that presents a serious potential risk of physical injury.
Prior to the U.S. Supreme Court’s holding in Begay, the crimes would have fit within the Seventh Circuit’s definition of “violent felony.” In U.S. v. Newbern, 479 F.3d 506 (7th Cir. 2007), the court held that reckless discharge of a firearm is a crime of violence.
However, in Begay, the Supreme Court held that a felony conviction for driving under the influence was not a violent felony, even though the conduct presented a serious risk of physical injury to another. Id., 128 S.Ct. at 1585.
The Supreme Court held that a strict liability offense is insufficient, because the prohibited conduct is not “purposeful or deliberate.”
Since Begay was decided, the Second Circuit has held that the crime of reckless endangerment is not a violent felony, because the statute does not criminalize purposeful or deliberate conduct. U.S. v. Gray, No. 07-3636, WL 2853470 (2d Cir., July 25, 2008).
The Seventh Circuit agreed, and applied that reasoning to the Indiana criminal recklessness statute.
The court noted that, in Begay, the Supreme Court referenced various federal statutes, and said they would not qualify as violent felonies. Included in that list of statutes were some that contained recklessness as an element of the crime, including reckless tampering with consumer products.
The court added, “We must remember that the enhanced prison term under the ACCA is imposed in addition to prison time that already has been served for the predicate felony convictions (emphasis in original).”
Because the Indiana statute at issue imposed liability for merely reckless acts, as well as intentional ones, the court held it did not qualify as a violent felony, and vacated the sentence.
Michael O’Hear, a professor at Marquette University Law School, said he was not surprised by the ruling.
“The Supreme Court decision in Begay pointed to a heightened mens rea requirement, so it is not surprising the Seventh Circuit went in the same direction,” O’Hear said.
The Begay decision itself was more shocking, because there is nothing in the ACCA regarding a mens rea requirement, he said, so “it seems to be a reach to find one hidden between the lines.”
But O’Hear added, “Once the Supreme Court went down that path, it is not surprising lower courts went that way, too.”
However, he noted that the opinion allows for the possibility that some crimes could still be considered violent felonies, even if they only have recklessness as an element.
The Seventh Circuit’s opinion states that additional materials may be considered to determine whether the defendant acted intentionally in the prior case: “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.”