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Sentencing — Armed Career Criminal Act — ‘violent felony’

By: WISCONSIN LAW JOURNAL STAFF//August 20, 2012//

Sentencing — Armed Career Criminal Act — ‘violent felony’

By: WISCONSIN LAW JOURNAL STAFF//August 20, 2012//

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Compelling a person to become a prostitute is not a violent felony within the meaning of the Armed Career Criminal Act.

The Act defines “violent felony” to mean either a felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another” or “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” “Compelling a person to become a prostitute” is a situation where one person, for money, compels another to submit to nonconsensual sex with a third person.” …

“This formula cannot be squared with the definition of a violent felony in the Begay case, decided after our first Brown decision. Later (that is, after the Begay decision), it is true, the Court, commenting on driving under the influence—the crime held in Begay not to be a violent felony—said that a crime ‘akin to strict liability, negligence, and recklessness crimes’ is not a violent felony. Sykes v. United States, 131 S. Ct. 2267, 2276 (2011). But this can’t be read to mean that every intentional crime is a violent felony (tax evasion? price fixing?); that would make no sense, and the Court immediately added that a violent felony in the catchall category is one that is ‘similar in risk to the listed crimes,’ id., which means crimes such as burglary and arson. ….

“Neither has it been shown that compelling a person, within the meaning of the Illinois statute, to become a prostitute necessarily creates a risk of violence to her. There would be a risk—more than a risk, an actuality—of violence if the compulsion required to convict of the crime were physical coercion, as in our recent case of United States v. Cephus, 684 F.3d 703 (7th Cir. 2012), where defendants had beaten and whipped women to force them to engage in interstate prostitution in violation of federal law. But as far as we have been able to learn, all that the Illinois felony of compelling prostitution requires be shown, and all that the typical case involves, is inducing women (perhaps men also) to engage in prostitution by promising them money or other things of value, such as mind-altering drugs, for doing so.”

Reversed and remanded.

11-1695 Brown v. Rios

Central District of Illinois, Mihm, J., Posner, J.

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