Dejá-Vu in Begay v. United States
posted by Anita Krishnakumar
Last month, the Supreme Court issued an opinion in a little-discussed but methodologically intriguing statutory interpretation case called Begay v. United States. Begay addresses the range of predicate convictions that qualify a defendant for sentence enhancement under the Armed Career Criminal Act of 1984 (the “ACCA”), 18 U.S.C. §924(e). The sentencing enhancement provision is one which the Court addressed last term (2006-2007) in the context of a different predicate offense, in a case called James v. United States. Taken in tandem, the two cases intrigue because despite involving the same statutory provision and being decided by the same nine justices (no retirements or replacements in the interim), they produced different outcomes, different voting coalitions, and even different reasoning by some Justices.
At issue in both cases is a provision of the ACCA that imposes a mandatory 15-year minimum sentence on an offender who possesses a firearm while committing a felony IF the offender previously was convicted of three “violent felonies” or “serious drug offenses.” The Act defines “violent felony” to include any adult crime punishable by at least one year’s imprisonment that “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)(ii). This last clause is referred to as the “otherwise” or “residual” clause and is the provision subject to interpretation in both Begay and James. In James, the question presented was whether a conviction for “attempted burglary” falls within the residual clause; in Begay it was whether a conviction for driving under the influence of alcohol (DUI) does. (Under New Mexico law, DUI becomes a felony punishable by a prison term of more than one year the fourth time an individual commits it; by the time of his federal offense, Begay had twelve DUI convictions, nine of which counted as felonies under New Mexico law.)
The Court, in two fractured opinions, answered the presented questions “yes” in James (attempted burglary counts) and “no” in Begay (a DUI does not count). Only three Justices were in the majority in both cases. Only one Justice dissented in both. So, what is going on with Justices’ reasoning? The following roadmap attempts to explain:
1. In the Majority Both Times: The unusual combination of Justices Breyer, Roberts, and Kennedy voted to enhance James’ sentenced based on his attempted burglary conviction, but not to count Begay’s DUI conviction as a violent felony under the same sentencing enhancement. They reached this result by first articulating the relevant test as whether the risk posed by the offense at issue (attempted burglary, DUI) is comparable to that posed by its closest analog among the enumerated offenses. These three Justices then reasoned that (i) of the enumerated offenses, attempted burglary is most analogous to burglary; (ii) the reason that burglary is considered a “violent felony” subject to sentencing enhancement is because it creates a risk of confrontation with, and injury to, innocent third parties; (iii) that risk of confrontation with and injury to innocent third parties also is present in the offense of attempted burglary; and (iv) attempted burglary therefore poses a risk comparable to the enumerated offense of burglary. By contrast, these Justices found that a DUI conviction contains no analog among the enumerated crimes because unlike the enumerated crimes, DUI is not a “purposeful,” “violent,” and “aggressive” offense. Accordingly, they concluded that DUI offenses are not covered by the residual clause. In addition, the Begay majority spent some time opining that one who commits a DUI offense is not necessarily the “type of offender” —i.e., a violent career criminal—whom Congress sought to deter from possessing a gun.
Majority’s Test: In order to count as a “violent felony” under the ACCA firearm enhancement provision, an offense must be similar both in degree of risk (established in James) and in kind (added in Begay) to one of the enumerated offenses. Methodology: Ejusdem generis of sorts – interpret the offenses (and offenders) covered by the general residual clause to be “of the same kind” as the specific offenses (and offenders) listed in the rest of the provision.
2. Dissenters in James, Majority in Begay: Justices Scalia, Stevens, and Ginsburg read the ACCA enhancement provision as insufficient to cover either attempted burglary or DUI, putting them in the dissent in James and in the majority, outcome-wise, in Begay. Justice Scalia authored the dissent in James and concurred in Begay; both of his opinions chastised the majority for taking an ad-hoc approach to interpreting the residual clause and offered an alternative test for determining whether a particular offense fits within the residual clause. Justice Scalia’s test, which he admits is imperfect, but argues is clearer than the majority’s = whether the offense at issue is at least as dangerous as the least dangerous of the offenses enumerated in the enhancement provision. This formulation, of course, begs the question: Which of the four enumerated offenses (burglary, arson, extortion, crimes involving explosives) is the least dangerous? After extensive discussion, Justice Scalia’s James dissent concluded that the least dangerous of the enumerated offenses is extortion. So the test, as envisioned by Justice Scalia = whether the offense at issue is at least as dangerous (read poses at least as much risk of injury) as extortion. Applying that test in both cases, along with a healthy dollop of the Rule of Lenity (maxim that in close cases, where the statute is unclear, the benefit of the doubt goes to the defendant) Justice Scalia found that there was insufficient evidence to show that either attempted burglary or DUI is at least as dangerous as extortion.
Methodology: Heavy reliance on the Rule of Lenity, a scale-tipping device that requires a narrow construction favoring the defendant when a criminal statute is less than clear; substantial interpretive license in crafting that narrow construction.
Although they voted the same way as Justice Scalia in both cases, it is unclear what Justices Stevens and Ginsburg think is the appropriate test for whether an offense fits within the residual clause of the ACCA enhancement provision. On the one hand, they joined Justice Scalia’s dissenting opinion in James, suggesting that they agree that an offense must pose at least as great a risk of injury as does extortion in order to subject a defendant to the sentencing enhancement; on the other hand, they joined the majority opinion rather than Justice Scalia’s concurrence in Begay, suggesting that they believe an offense must be similar in both kind and degree to one of the enumerated offenses (not necessarily extortion) in order to qualify the defendant for the enhancement.
Methodology: Who knows? Only the enumerated offenses qualify a defendant for the enhancement? No other offenses clearly are covered by the residual clause?
3. Majority in James, Dissenters in Begay: In stark contrast to Justices Scalia, Stevens, and Ginsburg, Justices Alito and Souter concluded that both attempted burglary and DUI are covered by the residual clause. Justice Alito authored the majority opinion in James, and the dissent in Begay. Both of his opinions emphasize the statutory text, which he reads to focus on the degree of risk of physical injury to another, rather than on commonalities between the enumerated offenses and the offense at issue. Alito’s Begay opinion, moreover, accuses the Begay majority and Justice Scalia of inventing “procrustean” constructions of the residual clause that “cannot be squared with” the statutory text.
Methodology: Text first! Any offense that poses a substantial risk of physical injury to another person qualifies the defendant for the enhancement. No hair-splitting and no special treatment for offenses that lack mens rea or do not seem as morally culpable (or “purposeful,” “violent,” or “aggressive”) as the enumerated offenses.
4. Dissenter in Both Cases: Justice Thomas argued that application of the sentencing enhancement in James was unconstitutional because it would raise the defendant’s sentence beyond the maximum that lawfully could have been imposed under the facts found by the jury or admitted by the defendant. In Begay, by contrast, he found no such incongruence between the enhancement and the maximum allowable sentence for the offense committed, so he joined Justice Alito’s dissent based on the plain text of the statute. While some might find the dissenting threesome of Justices Thomas, Alito, and Souter odd, I have argued in an earlier post that each of these Justices gives first priority to the plain text of the statute — when he believes the statutory text to be clear — so their combination in an opinion such as this one, which relies so heavily on the plain meaning of the statute’s text, should not be terribly shocking.
Upshot: Justices Alito, Souter, and Thomas have proved the most committed to the statutory text in the context of this criminal sentencing enhancement, even when the resulting outcome is not-so-palatable to them. (Their Begay dissent openly expresses sympathy for the result produced by the majority, but laments the majority’s construction as irreconcileable with the text). Justice Scalia has proved consistent, across cases, in applying the rather atextual, but Rule-of-Lenity-inspired, construction which he concocted to limit the reach of an ambiguous criminal statute. Justices Stevens and Ginsburg have proved somewhat mysterious, and arguably inconsistent, in their reasoning with respect to this particular sentencing enhancment. And Justices Breyer, Roberts, and Kennedy have proved rather common-law-judge-like in their willingness to tweak the applicable test for this sentencing enhancement (adding on a “similar in kind” requirement) in order to achieve their version of justice on a case-by-case, ad-hoc, basis.