09-2310, U.S. v. Fife, Eastern District of Wisconsin, Stadtmueller, J., Rovner, J.

Listen to this article

Sentencing
ACCA; prior convictions

The trial court erred when it held that a defendant’s prior convictions did not satisfy the requirements of the ACCA, because the knowledge and intent elements of the armed violence conviction at issue presented a serious risk of potential injury to others, notwithstanding the Supreme Court’s ruling in Begay v. U.S.
Conduct that “presents a serious potential risk of physical injury to another” is known as the residual clause, and is the critical phrase for this appeal. Fife argues that the Supreme Court in Begay clarified the meaning of that phrase, and that his armed violence conviction does not fall within it.

“The Supreme Court recognized that the enumerated offenses in the ACCA typically involved purposeful, violent and aggressive conduct ‘such that it makes it more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.’ Begay, 553 U.S. at 144-45; Welch, 604 F.3d at 416. Therefore, in order for an offense to fall within the residual clause, the Court held that the offense must be similar in kind to those enumerated offenses, and specifically must similarly be purposeful, violent and aggressive such that subsequent gun ownership would portend greater danger. …

“The requirement that an offense be purposeful focuses on the mens rea element. Dismuke, 593 F.3d at 592. In order to satisfy this provision, the offense must require, either explicitly or implicitly, knowing or intentional conduct, rather than a lesser mens rea such as recklessness or strict liability. Welch, 604 F.3d at 417-18; United States v. Smith, 544 F.3d 781, 786 (7th Cir. 2008); United States v. Spells, 537 F.3d 743, 752 (7th Cir. 2008); McDonald, 592 F.3d at 809. … The offense of armed violence for which Fife was convicted required a showing that Fife possessed cocaine with intent to deliver it, and while committing that felony he knowingly was armed. See People v. Adams, 638 N.E.2d 254, 258 (Ill. App. 4 Dist. 1994); People v. Olson, 420 N.E.2d 1161, 1163 (Ill. App. 2 Dist. 1981). The knowledge and intent requirements demonstrate the type of purposeful conduct that falls within the ACCA.

“The remaining factor that must be met is that the offense must involve a similar kind of violent and aggressive conduct as the enumerated crimes. In order to satisfy this standard, it is not necessary that every conceivable factual offense covered by the statute necessarily presents a serious risk of potential injury. James v.United States, 550 U.S. 192, 208 (2007); Dismuke, 593 F.3d at 594. Instead, the proper inquiry is whether the elements of the offense entail conduct that, in the ordinary case, presents a serious risk of potential injury to another. Id. The focus remains on the elements of the offense at issue, not the actual conduct of the particular defendant in this case. Therefore, offenses involving forms of inaction, such as escape involving failure to report for penal confinement, do not meet the criteria of purposeful and aggressive conduct, because one who fails to report is unlikely to call attention to herself by simultaneously engaging in violent and unlawful conduct. Chambers, 129 S. Ct. at 691-92; see also Welch, 604 F.3d at 424 and Dismuke, 593 F.3d at 595-96. In contrast, escape or fleeing an officer, when encompassing by its language active rather than passive conduct, has been held to be a violent offense under the ACCA. Dismuke, 593 F.3d at 595-96; Sykes, 598 F.3d at 336-37; Welch, 604 F.3d at 424; Spells, 537 F.3d at 752. The offense of possession of cocaine with the intent to distribute while armed has a much greater potential for violence than the active escape cases noted above. As was discussed earlier, there is an unmistakable connection between the illegal drug trade and violence, that in the ordinary case presents a serious risk of potential injury-which is all that is required under the ACCA. See Williams, 81 F.3d at 1437; Martinez, 938 F.2d at 1083-84; Thompson, 286 F.3d at 969; Ramirez, 45 F.3d at 1103; 42 U.S.C. § 11901. Because the armed violence conviction in this case ‘by its nature, presents a serious potential risk of injury to another,’ it satisfies the requirements of the ACCA. See James, 550 U.S. at 209. Accordingly, the Illinois armed violence conviction is a violent offense under the ACCA. Combined with the two other violent offenses in his criminal history, the armed violence conviction renders Fife an armed career criminal under the ACCA.”

Reversed and remanded.

09-2310, U.S. v. Fife, Eastern District of Wisconsin, Stadtmueller, J., Rovner, J.

Full Text