Federal law prohibits convicted felons from possessing firearms, and the Armed Career Criminal Act (“ACCA”) mandates increased prison sentences for violators of this provision who have three or more prior “violent felony” convictions. Petitioner Larry Begay (“Begay”) had at least three prior convictions for felony driving while intoxicated (“DWI”) when he pled guilty to federal firearms possession charges. The trial court held that felony DWI is a “violent felony,” and therefore sentenced Begay to a lengthy prison term under the ACCA. In deciding Begay’s appeal from this sentence, the Court will consider whether the ACCA’s “violent felony” definition encompasses felony DWI. A decision favoring Begay would likely limit the scope of the definition to felonies similar to those specifically listed in the ACCA: burglary, arson, extortion, and crimes using explosives. On the other hand, a decision in favor of the United States would likely extend the reach of the definition to all dangerous felonies.
Questions as Framed for the Court by the Parties
Facts
Larry Begay (“Begay”) has struggled with alcoholism “for the better part of his life.” Since 1983, he has accumulated 22 arrests and 12 convictions for driving while intoxicated (“DWI”). New Mexico courts found Begay guilty of DWI once in 1998 and twice in 2002. Although DWI is ordinarily a misdemeanor in New Mexico, the state treats an individual’s fourth or subsequent DWI conviction as a felony. Each of Begay’s three recent New Mexico DWI convictions was a fourth or subsequent DWI conviction and thus a felony.
In September 2004, after a night of drinking, Begay threatened his sister with a rifle and demanded money. When she replied that she had none, Begay pulled the trigger. The rifle was unloaded, and did not fire. Begay’s sister reported the incident to the Navajo Department of Law Enforcement, and responding officers found a rifle in Begay’s room. On January 24, 2005, in the United States District Court for the District of New Mexico, Begay pleaded guilty to an indictment charging him with violating 18 U.S.C. § 922(g)(1), a federal law prohibiting firearm possession by convicted felons. The Federal Sentencing Guidelines recommend a sentence of 41–51 months imprisonment for this offense; the statutory maximum sentence is 120 months.
However, if a felon guilty of firearms possession under 18 U.S.C. § 922 has three or more prior “violent felony” convictions, the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), requires a minimum sentence of 180 months imprisonment. At Begay’s sentencing, the district court held that felony DWI in New Mexico is a violent felony. The district court therefore concluded that the ACCA required it to sentence Begay to at least 180 months imprisonment. Holding that the Federal Sentencing Guidelines required a minimum sentence of 188 months imprisonment under the circumstances, the district court then sentenced Begay to 188 months.
Begay appealed his sentence to the United States Court of Appeals for the Tenth Circuit. A divided three-judge panel affirmed the district court’s conclusion that DWI in New Mexico is a “violent felony” for the purposes of the ACCA. However, finding that the district court erred in applying the Federal Sentencing Guidelines, the Tenth Circuit remanded the case to the district court for re-sentencing. On February 21, 2007, the Tenth Circuit denied Begay’s petition for rehearing en banc.
On May 22, 2007, Begay petitioned the United States Supreme Court for a writ of certiorari, which the Court granted on September 25, 2007.
Analysis
Federal law provides that “[i]t shall be unlawful for any person . . . who has been convicted in any court of . . . a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting interstate commerce . . . any firearm . . .” The effect of this provision is that an individual with a prior felony conviction cannot lawfully possess a firearm. The maximum penalty for a § 922(g) violation is 10 years imprisonment.
However, the Armed Career Criminal Act (“ACCA”), codified at 18 U.S.C. § 924(e) (2006), mandates increased penalties for § 922(g) violations under certain circumstances. The ACCA provides in relevant part that: “ . . . a person who violates [18 U.S.C. § 922(g)] and has three previous convictions . . . for a violent felony . . . shall be . . . imprisoned not less than fifteen years . . .” The portion of the ACCA’s “violent felony” definition at issue in this case includes a felony 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 . . .” Courts determine whether or not a defendant’s prior crime constitutes a “violent felony” by examining the legal definition of the crime, generally ignoring the specifics of the defendant’s conduct.
Analysis of the Plain Language of the ACCA
The United States (“Government”) argues that recidivist felony DWI in New Mexico constitutes a “violent felony” under the plain meaning of the ACCA. According to the Government, the ACCA’s definition includes any felony that “by its nature, presents a serious risk of physical injury to another.” The Government notes that DWI is illegal in every state, and that anyone guilty of felony recidivist DWI in New Mexico has demonstrated reckless disregard for the safety of others by drinking and driving repeatedly. Therefore, according to the Government, felony recidivist DWI inherently threatens the physical safety of others, and falls within the ACCA’s definition of a violent felony.
Begay argues that the ACCA’s “violent felony” definition encompasses only felonies similar to burglary, arson, extortion, or the use of explosives. According to Begay, the context of the “otherwise” clause of the definition requires that the Court restrict the clause’s meaning. Congress would not have enumerated specific types of felonies, Begay argues, if it had intended the “violent felony” definition to encompass all felonies posing a physical threat to others. The Government’s interpretation, according to Begay, improperly renders the enumeration meaningless. Moreover, relying on Leocal v. Ashcroft, 543 U.S. 1, 11 (2006), Begay claims that the ordinary meaning of the term “violent felony” does not include crimes such as DWI. Begay argues that the title of the Armed Career Criminal Act further supports this conclusion. A repeat drunk driver, according to Begay, is hardly an armed career criminal.
The Government responds that if Congress intended to limit the scope of the “violent felony” definition to crimes similar to the enumerated felonies, it would not have gone on to include felonies that “otherwise” pose a risk of harm to others. The term “otherwise,” according to the Government, means “in a different manner” or “in another way.” Therefore, the Government argues, Congress expressly indicated that dangerous felonies may fit the ACCA “violent felony” definition even if they have little in common with the enumerated felonies. According to the Government, the ACCA’s title cannot alter the clear meaning of this language.
Application of the Canons of Statutory Construction
Begay argues that canons of statutory construction require the Court to limit the meaning of the “otherwise” clause of the ACCA’s violent felony definition to conform to the adjacent specific enumeration of felonies. Under the canon of noscitur a sociis, Begay claims, courts interpret the meaning of statutory word in light of neighboring words in the statute. Under the canon of ejusdem generis, according to Begay, courts construe general statutory language to encompass only subject matter similar to that described by adjacent specific language. Therefore, Begay argues, the “otherwise” clause should only encompass offenses similar to the enumerated felonies. According to Begay, the common thread between the enumerated offenses is that they are property offenses career criminals commit to support themselves. Moreover, Begay notes, each of the enumerated offenses is more dangerous when its perpetrator carries a firearm. The “otherwise clause” does not include recidivist DWI, according to Begay, because recidivist DWI has none of these characteristics.
The Government responds that the Court should not resort to canons of construction, because felony DWI is clearly a “violent felony” under the plain meaning of the ACCA.
Constitutional Questions
Begay argues that the Court should exclude DWI from the scope of the ACCA to avoid raising constitutional concerns. Expanding upon this point, the National Association of Federal Defenders (“NAFD”) argues that Article I, section 1 of the United States Constitution requires that Congress, not the courts, determine the penalties applicable to a crime. The Government’s interpretation of the ACCA, according to the NAFD, leaves courts with no meaningful legislative standards to limit their discretion as to when the harsher sentences mandated by the ACCA apply. The NAFD further argues that the Government’s interpretation would render the ACCA unconstitutionally vague and violates Begay’s trial rights under the Fifth and Sixth Amendments to the Constitution. According to the NAFD, Begay’s interpretation of the ACCA avoids these problems.
The Government responds that its interpretation of the ACCA merely requires courts to determine whether or not the elements of a given crime pose a serious risk of physical injury to others. According to the Government, this is a legal determination well within courts’ traditional and constitutional competency. Moreover, according to the Government, Begay’s interpretation does not clarify the ACCA. The Government argues that Begay’s interpretation has little basis in the ACCA’s text, and requires courts to undertake a difficult inquiry into whether or not a particular felony is similar to the felonies enumerated in the ACCA.
Discussion
In this case, the U.S. Supreme Court will consider whether felony driving while intoxicated (“DWI”) is a “violent felony” for the purposes of the Armed Career Criminal Act (“ACCA”), codified at 18 U.S.C. § 924(e) (2006). Federal law prohibits convicted felons from possessing firearms. Violators of this prohibition face stiffer penalties under the ACCA if they have three or more prior violent felony convictions. A recidivism provision in New Mexico’s DWI law elevates DWI from misdemeanor to felony status if the offender has three or more prior DWI convictions. Larry Begay (“Begay”) pleaded guilty to violating the federal prohibition on firearms possession by felons, and has at least three convictions for felony recidivist DWI in New Mexico. If the Court finds that felony recidivist DWI in New Mexico constitutes a “violent felony” under the ACCA, it will likely hold that the ACCA’s lengthy prison term requirements apply to Begay.
Arguments of the Parties
The United States (“Government”) argues that the ACCA’s plain language encompasses felony recidivist DWI in New Mexico. The ACCA’s definition of a “violent felony” includes any felony 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 . . ..” Although DWI is not among the enumerated felonies, the Government argues that DWI “otherwise” threatens others’ safety. According to the Government, recidivist DWI is particularly risky, because the offender has demonstrated his disregard for others’ safety by repeatedly drinking and driving.
Begay responds that the “otherwise” provision only encompasses felonies similar to the preceding enumerated felonies: burglary, arson, extortion, and crimes using explosives. Begay notes that the enumerated crimes are each property crimes typically committed by career criminals as part of their livelihood, and that each becomes more dangerous when the criminal carries a firearm. DWI, according to Begay, has very little in common with the enumerated crimes: a criminal can’t support himself by drinking and driving, and DWI is no more dangerous with a gun than without. Therefore, Begay argues, Congress cannot have intended § 924(e)(2)(B)(ii) to encompass DWI.
Assessing the Risks of Driving While Intoxicated
The National Association of Criminal Defense Lawyers (“NACDL”) notes that statistical analysis of self-reported data indicates that the probability that an intoxicated driver will injure another person on any given trip is 0.0025 percent. According to the NACDL, DWI is a relatively minor cause of auto accidents. By comparison, the NACDL notes that 3.8 percent of burglaries result in violence. In light of this disparity between DWI and burglary, the NACDL argues DWI should not trigger the ACCA’s harsh penalties.
The Government, by contrast, characterizes DWI as highly dangerous. The Government notes that the definition of DWI requires actual impairment by alcohol or a blood alcohol level that almost guarantees impairment. According to the Government, legislative findings, court decisions, and scientific studies all support the conclusion that DWI poses a grave risk of injury to others.
Implications of the Court’s Decision
Congress’s primary goal in enacting the ACCA likely was to apply increased punishments to career criminals who carry guns while committing crimes to support themselves. However, the Government argues that the ACCA’s language reaches much further. Lower courts that agree with the Government have found that crimes such as failure to report to jail, failure to pull a car over in response to police lights, pickpocketing, and bicycle theft constitute violent felonies. The Families Against Mandatory Minimums Foundation (“FAMM”) notes that the Government’s interpretation supports the surprising conclusion that felony recidivist prostitution, which involves a risk of STD transmission, is a violent felony. The Court’s decision in this case will likely clarify the extent to which the ACCA’s definition of a “violent felony” encompasses dangerous felonies in general.
Conclusion
The Court’s decision in this case will likely clarify whether the definition of “violent felony” in the Armed Career Criminal Act (“ACCA”) encompasses all felonies posing a risk of physical injury to others, or only reaches more traditional violent crimes similar to burglary, arson, extortion, and crimes using explosives. A decision in Begay’s favor would limit the circumstances in which the ACCA’s lengthier prison sentence requirements apply. According to Begay, this would effectuate Congress’s intent to single out firearm-possessing criminals who commit crimes as their means of livelihood for special punishment. On the other hand, a decision in the Government’s favor would likely give the ACCA broad effect, which according to the United States would accord with the language of the ACCA.
Written by:
Bryan Hall
Ferve Ozturk
Acknowledgments
Additional Resources
- Centers for Disease Control and Prevention – Impaired Driving
- Mothers Against Drunk Driving
- David Ziemer, Drunk Driving is a 'Violent Felony,' Wisconsin Law Journal, Dec. 28, 2005.
- Sheila Burke, DUI convictions can't be erased, Tennessean.com, Nov. 24, 2007.