The crime of intentional flight from a police car is a violent felony under the ACCA enhancement clause

Happy New Year everybody. Sandra Day O’Connor, retired Supreme Court Justice participated on the panel for U.S. v. Petite, the first criminal decision for 2013 from the Eleventh Circuit. Judge Marcus wrote the opinion. In U.S. v. Petite the defendant was indicted in a federal court in Florida with federal crime of possession of a firearm by a convicted felon in violation of 18 U.S.C. 922(g). At sentencing the pre-sentence report qualified him for an enhancement under the Armed Career Criminal Act (A.C.C.A) 18 U.S.C. 924(e) because he had three predicate prior felony convictions that were used to apply the enhanced sentence under the guidelines, giving him a range of 188-235 months. The one predicate conviction Petite challenged was a conviction for intentional vehicle flight from a police car in violation of Florida statutes. The Eleventh Circuit upheld the district court’s decision finding the prior conviction is a violent felony under the ACCA based on the Supreme Court’s decision in Sykes v. U.S. which held that a similar conviction under the Indiana vehicle flight offense was a violent felony for ACCA purposes dictated the outcome of this case.

The ACCA provides for a fifteen year minimum enhancement for a violation of the felon in possession statute if the person has three prior felony convictions for a crime of violence or serious drug offense. The provision has three basic categories of qualifying offenses. The first two categories involve specific enumerated offenses, and the vehicle flight conviction did not fall under the first two categories. The third category, the one at issue here, is the residual clause. It consists of those crimes not otherwise enumerated in the statute, which “involve conduct that presents a serious potential risk of physical injury to another.” 924(e)(2)(B)(ii).

Under Supreme Court precedent, court applying the ACCA residual clause to determine whether a prior conviction is a crime of violence must use what the court calls the “categorical approach,” whereby the court must look to the fact of conviction and the statutory definition of the prior offense, and not consider the particular facts disclosed by the record of the conviction. In other words the court must consider whether the elements of the offense are of a type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of the particular offense. Using this approach, the Eleventh Circuit rejected Petite’s attempt to distinguish Sykes by distinguishing the facts surrounding Sykes’ conviction from the detailed facts surrounding his vehicle flight.

The Supreme Court also instructs lower courts to engage in a comparative inquiry to determine if the offense falls within the residual clause. Under this approach, the Supreme Court uses the categorical approach to determine whether the offense presents a serious potential risk of physical injury to another that is comparable to the risk posed by the ACCA’s enumerated crimes. The Eleventh Circuit found the risk posed by intentional vehicle flight from a police officer was most comparable to the enumerated offenses of arson and burglary. Relying on Sykes, the Eleventh Circuit concluded that vehicle flight from a police officer is an “extraordinary risky enterprise because of the dangerous confrontation between the offender and the law enforcement officer that ordinarily can be expected to ensue.”

The Eleventh Circuit acknowledged that its decision overruled a prior panel opinion in U.S. v. Harrison, 558 F. 3d 1280 (11th Cir. 2009), which held that simple vehicle flight was not a violent felony offense under the ACCA. But the court ruled that the Sykes decision that the Indiana vehicle flight conviction presented powerful risks that are at least as great as the risks presented by arson and burglary.

In case you missed it, kindly read my previous post:
A sentencing enhancement for a prior battery under Florida law stands despite a Supreme Court decision finding the Florida statute is not a crime of violence, but not without a dissent, December 24, 2012