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December 12, 2006

Tenth Circuit wraps up big day in the circuits

Tuesday was quite the busy sentencing day in the Circuits.  In addition to previously noted rulings from the Fifth Circuit and the Eighth Circuit, there were also significant sentencing decisions from the Third Circuit (on restitution awards), from the Sixth Circuit (on reasonableness review), and from the Seventh Circuit (on guideline calculations).  But, as noted here at How Appealing, the best read of the day might come from the Tenth Circuit's split decision in US vs. Begay, No. 05-2253 (10th Cir. Dec. 12, 2006) (available here) concerning whether drunk driving convictions should qualify as 'violent felonies' under the Armed Career Criminal Act.

Begay includes a nice little Booker section that clarifies that the guidelines "impose no rigid boundaries on what sentences are permissible."  But the heart of the opinion deals with statutory construction and congressional intent, and the start of Judge McConnell's dissent spotlights the central issue:

The majority holds that serial drunk driving is a violent felony for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).  As a result, it finds that the defendant was properly sentenced to over fifteen years in prison for a crime that otherwise would entail a Guidelines range of 41-51 months. I respectfully dissent.

December 12, 2006 at 11:02 PM | Permalink


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Is serial drunk-driving a violent felony within the meaning of the Armed Career Criminal Act? The Tenth Circuit says yes; Judge Michael McConnell says no. (Links via Howard Bashman and Doug Berman.) The defendant was a Navajo man with a... [Read More]

Tracked on Dec 12, 2006 11:53:54 PM


Doug, Begay illustrates the conceptual conundrum which accompanies the use of prior convictions as elements of substantive crimes. Both Begay's triggering offense of Possession of A Firearm by a Convicted Felon and one of the strikes under ACCA, Felonious DWI, are, by definition, "recidivist offenses." That is, an essential element of each is a prior conviction.

It is not until the fourth DWI conviction that the defendant is considered to have "committed" a felony. It is only because of the conviction of a prior felony that Poss of Firearm by a Felon is a "crime."

Recidivist offenses have passed double jeopardy muster because they are not crimes, they are sentence enhancing statuses. Parke v Raley. (USSC holding that habitual felon laws do not violate double jeopardy.)

The Apprendi prior conviction exception recognizes that priors serve as factors which enhance punishment, not serve as elements of crimes. Therefore, the Sixth Amendment does not apply to the determination of the existence of prior convictions.

In my view, the legislature may punish a person who possesses a gun after having been convicted of a crime. But, such punishment is not because the defendant has committed a new crime to which the Sixth Amendment applies. Rather, the defendant has violated a condition of the original conviction-not to possess a gun-, and the proceeding is analogous to a contempt of court proceeding for not adhering to the conditions of the court's original judgment. The Sixth Amendment right to jury trial does not apply to contempt proceedings, probation violations and parole violations because they are not "criminal prosecutions."

Therefore, the fundamental flaw in Begay, similar to the flaw in the Wood case which I sent you a few days ago, is that a recidivist offense is used to trigger the operation of a second recidivist offense, rather than being used to increase the sentence of a separate crime.

Bruce Cunningham

Posted by: bruce cunningham | Dec 13, 2006 12:55:56 AM

Prof. Berman,
Could you publish a link to the Third Circuit decision relating to restitution?


Posted by: Brian | Dec 13, 2006 10:59:38 AM

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