Attempted crimes are violent felonies applies in Wisconsin.

• Author: Ziemer, David

Byline: David Ziemer

Attempted burglary is a "violent felony" within the Armed Career Criminal Act (ACCA), subjecting a defendant with a prior conviction to the minimum 15-year sentence. The U.S. Supreme Court's April 18 opinion only specifically addresses Florida's attempted burglary statute, but the holding is equally applicable to Wisconsin's. Alphonso James pleaded guilty in federal court to possession of a firearm by a felon, contrary to 18 U.S.C. 922(g)(1). In his guilty plea, he admitted to three prior felony convictions, including a Florida state court conviction for attempted burglary of a dwelling. At sentencing, the government argued that James was subject to ACCA's 15-year mandatory minimum term in 18 U.S.C. 924(e). James objected, arguing that his attempted burglary conviction did not qualify as a "violent felony" under the ACCA. The district court held that attempted burglary is a violent felony, and the Eleventh Circuit affirmed. 430 F. 3d 1150, 1157 (11th Cir. 2005). The U.S. Supreme Court accepted review, and affirmed in a decision by Justice Samuel A. Alito, Jr. Justice Clarence Thomas wrote a lone dissent, and Justice Antonin Scalia wrote a dissent joined by Justices John Paul Stevens and Ruth Bader Ginsburg. The statute defines "violent felony" as "any crime punishable by imprisonment for a term exceeding one year ... that -- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Only subsec. (ii) was at issue. The court concluded that attempted burglary "involves conduct that presents a serious potential risk of physical injury to another," and held that the conviction therefore qualifies as a "violent felony." After first rejecting James' argument that Congress only intended the definition to include completed offenses, not attempts, the court found that the elements of the offense warrant inclusion in the definition's residual provision, without inquiring into the specific conduct in the offense. Noting that the main risk of a completed burglary arises rather from the possibility of a face-to-face confrontation between the burglar and a third party who comes to investigate, the court concluded that attempted burglary poses the same risk. Alito wrote, "Interrupting an intruder at the doorstep...