Argument Preview: Begay v. US
Achyut Phadke, a student in the Supreme Court Litigation Clinic at Stanford Law School, wrote the following preview of Tuesday's argument for SCOTUSwiki. Additional links and information are available on the Begay wiki page, here.
In his brief on the merits, Begay argues that New Mexico's felony DWI offense is not a "violent felony" because the ACCA's residual clause only covers "violent, active property crimes that are typical of career criminals and that are more dangerous when committed with firearms" "“ a definition that does not include New Mexico's felony DWI crime. Again citing Leocal and Doe, Begay first contends that the term "violent felony" limits the residual clause to "only violent, active crimes," such as burglary, arson, and the other enumerated offenses. Second, the short title of the act, the "Armed Career Criminal Act," suggests that the residual clause includes only "offenses committed by career criminals that become more dangerous when committed with a firearm," a position corroborated by the legislative history of the act. Moreover, Begay notes, the ACCA's structure indicates that the residual clause is limited to property crimes, as the two subsections of the definition of "violent felony" can be analyzed, respectively, as covering crimes involving physical force against a person, and crimes against property. Third, the legislative history also supports the view that the residual clause was aimed at property crimes.
Begay fleshes out his arguments from the cert. stage that several tools of statutory interpretation indicate that crimes covered by the residual clause must be similar to the enumerated offenses. He again points to the rule against surplus language, arguing that the court of appeals' interpretation of the residual clause as covering "all crimes," rather than merely crimes "similar" to the enumerated offenses, would render several parts of the statute superfluous: there would be no need for the statute to list the enumerated offenses, or for the statute to explicitly include serious drug offenses as predicate crimes, as those crimes would be covered by the more general language of the residual clause. He also again raises the canons of statutory construction "“ ejusdem generis and noscitur a sociis "“ in support of his position that the residual clause should be limited to offenses that are "similar" to the enumerated crimes.
Begay argues that the particular definition of felony DWI in New Mexico does not fall within the ACCA definition of violent felony. In New Mexico, DWI is a strict liability offense that covers anyone who i) has a blood alcohol content of 0.08 or is otherwise under the influence of alcohol and ii) is operating a motor vehicle. Begay contends that such a crime does not qualify as a "violent felony" because "no dangerous conduct of any sort or any other traffic code transgression is required" to violate the New Mexico law. Moreover, the lack of a mens rea requirement in the New Mexico statute precludes New Mexico's felony DWI offense from qualifying as a violent felony. Begay also notes that felony DWI in New Mexico acts as a recidivist sentencing enhancement: the first three instances of DWI are treated as misdemeanors that are punishable for a term of less than a year, while subsequent offenses are felonies which carry an eighteen-month sentence. Raising a similar issue to that in Rodriquez, below, Begay argues that the recidivist enhancement is not an element of the crime and should not be considered when determining whether an offense qualifies as a violent felony; thus the court should only focus on the elements of the crime. Begay also argues that the Court should reverse because of the constitutional concerns about vagueness, separation of powers, and Fifth and Sixth Amendment procedural rights raised by the court of appeals' interpretation of the residual clause, and because the rule of lenity counsels against giving the residual clause a broad scope.
The United States argues that because New Mexico's felony DWI statute covers conduct that "presents a serious risk of physical injury to another," the offense qualifies as a violent felony under the terms of the ACCA. As it did at the cert. stage, the United States emphasizes that the Court in James held that an offense did not have to be of the "same type" as the enumerated offenses to qualify under the residual clause of the ACCA. Citing data from the National Highway Transportation Safety Administration to support its contention that intoxicated drivers (and in particular repeat offenders) pose a "grave risk of physical injury," the United States maintains that the risk of physical injury to another presented by recidivist felony DWI is comparable in degree and kind to the risk presented by the enumerated offenses. This argument has further support, the United States notes, in the actions of the Sentencing Commission: although numerous courts of appeals have interpreted Guidelines § 4B1.2(a)(2), which contains identical language to the residual clause, to cover felony DWI, the Sentencing Commission has not amended that section or repudiated the courts of appeals' decisions, as it has in other contexts where it disapproved of courts of appeals' interpretations of the Guidelines' residual clause.
The United States disputes Begay's construction of the New Mexico DWI statute, arguing that "[s]imply driving after consuming alcohol is not "driving under the influence'" under the New Mexico statute. Rather, "the central question . . . is whether alcohol has impaired the driver's ability to handle an automobile safely"; thus the New Mexico statute covers "injury-risking behavior." Moreover, the United States asserts, the analysis required by the Court's precedent to assess whether an offense falls within the residual clause requires a court to look at "the ordinary case," and does not require "that every conceivable factual offense covered by the statute . . . necessarily present a serious potential risk of injury before the offense can be deemed a violent felony."
The United States also disputes Begay's narrow interpretation of the residual clause. It notes that not all the enumerated offenses satisfy Begay's interpretation: for example, arson and the use of explosives are not necessarily property offenses, nor are they necessarily offenses conducted by someone pursuing a criminal livelihood. Moreover, it argues that neither the legislative history nor the Court's precedent limits the residual clause to offenses that are "similar" to the enumerated crimes. It again argues that the Leocal definition of crime of violence as an offense including "active violence" is irrelevant, because the statute in Leocal addressed the use of force, as opposed the "risk of injury"; active violence is not required for there to be a risk of injury. The United States adds that because Begay has not presented any ambiguity, there is no need to take recourse in legislative history or the canons of construction. Moreover, it argues that nothing in the legislative history suggests that Congress intended to limit the residual clause to property offenses or crimes of "career criminals" in pursuit of their livelihood. Instead, the United States posits, the drafting history suggests the opposite conclusion – the general residual clause was originally the only term in the relevant subsection of the definition of "violent felony," while the enumerated offenses were added afterwards, suggesting that Congress did not intend to restrict the general term with the specific examples. Contrary to Begay's argument that the ACCA was aimed at crimes that become more dangerous when committed with a firearm, the United States argues that that was the purpose of 18 U.S.C. 924(c), which provides a mandatory minimum sentence for use or possession of a firearm in furtherance of a crime of violence, but is not the purpose of the ACCA. The United States notes that the residual clause doesn't exclude the New Mexico felony DWI statute for lack of a mens rea element, as the presumption of a mens rea requirement does not apply to recidivist sentencing provisions. It also disputes Begay's assertion that the constitutional avoidance canon counsels reversal "“ arguing that James resolved these constitutional issues in favor of the government. It then concludes that the rule of lenity "is reserved for cases . . . involving a grievous ambiguity in the statutory text" and so has no application here.