Interpreting Begay After Sykes: Why Reckless Offenses Should Be Eligible To Qualify as Violent Felonies Under the ACCA’s Residual Clause

by Cornelia J.B. Gordon

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Abstract

Passed as part of the Armed Career Criminal Act, 18 U.S.C. § 924(e) subjects felons in possession of firearms to a strict mandatory minimum sentence if the offenders have three prior state or federal convictions that qualify as serious drug offenses or violent felonies. A crime qualifies as a violent felony under the residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), if it is one of the enumerated offenses of “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Current federal circuit court interpretations of the Supreme Court’s decisions in Begay v. United States and Sykes v. United States exclude both crimes with lesser mens rea—recklessness or negligence—and strict-liability crimes from qualifying under the residual clause.

This Note proposes that some reckless crimes, like drive-by shooting, would qualify if compared to their closest analogs among the enumerated offenses for purposes of determining similarity “in kind,” a requirement under Sykes and Begay. This proposed solution would bring some reckless offenses within the scope of the residual clause, allowing for increased, though narrow, targeting of the most dangerous felons: the armed career criminals.

Interpreting Begay After Sykes: Why Reckless Offenses Should Be Eligible To Qualify as Violent Felonies Under the ACCA’s Residual Clause

by Cornelia J.B. Gordon

Click here for a PDF file of this article

Abstract

Passed as part of the Armed Career Criminal Act, 18 U.S.C. § 924(e) subjects felons in possession of firearms to a strict mandatory minimum sentence if the offenders have three prior state or federal convictions that qualify as serious drug offenses or violent felonies. A crime qualifies as a violent felony under the residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), if it is one of the enumerated offenses of “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Current federal circuit court interpretations of the Supreme Court’s decisions in Begay v. United States and Sykes v. United States exclude both crimes with lesser mens rea—recklessness or negligence—and strict-liability crimes from qualifying under the residual clause.

This Note proposes that some reckless crimes, like drive-by shooting, would qualify if compared to their closest analogs among the enumerated offenses for purposes of determining similarity “in kind,” a requirement under Sykes and Begay. This proposed solution would bring some reckless offenses within the scope of the residual clause, allowing for increased, though narrow, targeting of the most dangerous felons: the armed career criminals.