Tenth Circuit continues to struggle through ACCA's ever-elusive residual clause

A helpful reader alerted me to a series of recent notable Tenth Circuit decisions regarding application of the Armed Career Criminal Act and sent along this detailed summary for posting (which probably only hard-core ACCA fans will enjoy, but they should enjoy it lots):

Federal practitioners know that the meaning of the ACCA/4B1.2(a)(2)’s residual clause is one of the most frequently occurring yet confusing issues in federal sentencing law. And the confusion does not seem to be subsiding. Perhaps best illustrating this are three cases issued by the Tenth Circuit within just a two-week time span.

First came US v. Sandoval, No. 11-1303 (10th Cir. Oct. 9, 2012) (available here). The issue there was whether a prior conviction for “heat-of-passion” assault should be classified as a violent felony under the ACCA’s residual clause.  The heat-of-passion offense read:  "If assault in the second degree is committed under circumstances where the act causing the injury is performed, not after deliberation, upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person."

The Sandoval court held that such a crime is an ACCA violent felony. But, in doing so, the opinion contained some telling language. The opinion began by explaining: “This is another of those cases, now becoming legion[FN1] where we must decide if a prior conviction constitutes a violent felony under the Armed Career Criminal Act (ACCA).” Footnote 1 then explained how courts continue to face this issue and yet “[t]he law is not well-settled.”  A few pages later, the opinion lamented how Sykes, the Supreme Court’s latest excursion into residual-clause land, is “not a model of clarity."  Footnote 8 then went on for four paragraphs about the confusion.

Sandoval raises a number of very interesting questions.  Among them:

1) What is the meaning of Begay post-Sykes?

2) Is a heat-of-passion offense akin to the type of mens rea crime at issue in Begay, or is Sykes the more analogous case?

3) Is a Begay analysis ever needed when the offense at issue is not one of strict liability, negligence, or recklessness?

4) If so, is a heat-of-passion offense “similar in kind” to the ACCA example crimes, none of which involve either the victim’s provocation or an irresistible passion of a reasonable person?

5) Is Begay's "in kind" analysis solely limited to an inquiry about being "purposeful, violent and aggressive," or can an offense be different from the example crimes "in kind" in a different way?

The first question is the big one, and questions two through five seem to inextricably follow from the first. Despite this confusion, the Tenth Circuit held that a heat-of-passion offense — where A) the victim provokes the offense, B) the offender is acting pursuant to an irresistible passion in a reasonable person, and C) there is no deliberation — is similar to the ACCA enumerated crimes. With so many important questions involved, this may be the perfect post-Sykes case to clarify the US Supreme Court’s residual clause precedents.

Nine days later, the Tenth Circuit returned to the uncertainty surrounding the residual clause in US v. Duran, No. 11-1308 (10th Cir. Oct. 18, 2012) (available here).  There, the Circuit held that aggravated assault by recklessly causing bodily injury does not satisfy the residual clause (this time under USSG § 4B1.2(a)(2)). Even though the prior offense required causing bodily injury to the victim, the Circuit reasoned that Begay prevents reckless conduct from satisfying the residual clause.  This certainly appears to be the correct outcome; Sykes itself implies that reckless crimes are outside of the residual clause.  Nevertheless, the Tenth Circuit panel still questioned its earlier precedent on that issue, and wondered aloud “if Begay is still good law.” See footnote 1.

Finally, four days after that, the Tenth Circuit again found itself in residual-clause land with US v. Maldonado, No. 11-2168 (10th Cir. Oct. 22, 2012) (available here). This time, the Tenth Circuit held that California’s first-degree burglary statute, although not constituting the generic, enumerated offense of burglary, did satisfy the ACCA’s residual clause.  The court reached this result by applying “a two-part test, asking first whether the offense poses a serious potential risk of physical injury to another and second, whether the offense is ‘roughly similar’ in kind and degree of risk as the enumerated crimes in the ACCA.” The Circuit stressed again — as it did in Sandoval and Duran — that part two of the test is “subject to some debate,” noting how the Supreme Court is “splintered” on part-two.  See footnote 6.  The Maldonado panel also felt it important to remind us of Sandoval’s commentary on this confusion. See footnote 7.

The Tenth Circuit is not alone in tiring of the “legion” of cases it must decide on the ever-elusive meaning of the residual clause.  And its frustration over this uncertain area of the law is warranted.  Tellingly, the three opinions are each authored by a different judge, and they constitute seven of the nine active Tenth Circuit judges and one Senior Judge. Ultimately, the Supreme Court should heed the Tenth Circuit’s frustration and clarify this “splintered” issue sooner rather than later.  (Or, for that matter, declare the clause void for its vagueness.)  The issue is too important and commonly occurring to continue leaving the lower courts without much-needed guidance.