Seventh Circuit says drunk driving is a 'violent felony'.

Byline: David Ziemer

The Seventh Circuit held on Dec. 19 that drunk driving is a "violent felony" for purposes of the Armed Career Criminal Act (ACCA), notwithstanding the U.S. Supreme Court's decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), that it is not a "crime of violence."

The maximum penalty for possessing a firearm despite a prior felony conviction is 10 years' imprisonment. However, if a defendant has at least three other "violent felonies," the minimum term is 15 years, pursuant to the ACCA, 18 U.S.C. 924(e).

Roland C. Sperberg pleaded guilty in the Western District of Wisconsin to felon in possession, and Judge John C. Shabaz sentenced him to 210 months in prison, after finding that he had three prior violent felony convictions.

Sperberg appealed, contending that two of his previous felony convictions were not violent felonies, but the Seventh Circuit affirmed in a decision by Judge Frank H. Easterbrook.

Under the ACCA, "violent felony" is defined 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." 18 U.S.C. 924(e)(2)(B).

The court first held that the district court properly found that Sperberg's conviction for threat to injure or accuse of crime, in violation of Wis. Stats. sec. 943.30(1), constituted a violent felony.

In that case, Sperberg stole some lobster tails from a grocery store, and, while making his escape, he told the guard to get out of the way because he had a gun.

Affirming the district court's conclusion, the court found, "The charge was that Sperberg threatened the guard, and during the plea colloquy the state judge said that the threat had been with a gun (the affidavit supporting the criminal information, and deemed part of the charge under state practice, says that Sperberg told the guard: 'I've got a gun and I'll shoot you'); Sperberg did not reply that he had instead threatened to accuse the guard of crime or vandalize his car. The district judge here looked no further than Shepard and Taylor allow; he did not turn to police reports or equivalent documents. The state judge let Sperberg off with a slap on the wrist, apparently thinking that Sperberg had been too drunk and high on other drugs to...