DRIVING DANGEROUSLY: VEHICLE FLIGHT AND THE ARMED CAREER CRIMINAL ACT AFTER SYKES v. UNITED STATES
Isham M. Reavis(fn*)
Abstract: The Armed Career Criminal Act (ACCA), a federal "three-strikes" recidivist statute, applies a mandatory enhancement to sentences of criminal defendants previously convicted of three qualifying predicate crimes. In Sykes v. United States the U.S. Supreme Court held that a conviction for fleeing police by car counted as a predicate under ACCA's residual provision for crimes that "otherwise involve conduct that presents a serious potential risk of physical injury to another." ACCA's residual provision has produced a confusing series of U.S. Supreme Court decisions, each applying a different method for determining its scope. Though Sykes borrows methods from each of these prior cases, this Comment argues that only the narrowest of its bases-a finding of risk based on the statutory features of the state crime-controlled its outcome. This basis suffices to explain Sykes' outcome, and best comports with the Court's own precedent mandating a categorical approach when interpreting ACCA. Under the categorical approach, a court may consider only the elements of a crime, not the particulars of its commission by an individual defendant, to determine whether it qualifies as a predicate offense under ACCA. Applying this interpretation of Sykes in future cases, only vehicle-flight convictions that either (1) require risk of physical injury to another as an element themselves or (2) share the same punishment as a comparable offense containing this element will qualify under ACCA's residual provision. However, in Sykes' wake most federal courts have read Sykes broadly, employing reasoning this Comment argues is inconsistent with faithful application of the categorical approach.
INTRODUCTION
When Marcus Sykes pleaded guilty to illegally possessing a firearm in 2008,(fn1) nearly every day of his more than fifteen-year sentence-all but eight months out of 188-sprang from a five-year-old prior conviction. The Armed Career Criminal Act (ACCA) ratcheted what might otherwise have been jail time of less than five years for being a felon in possession of a firearm to more than fifteen years behind bars,(fn2) based on Sykes' prior conviction in 2003 for fleeing when police tried to pull him over for driving without headlights.(fn3)
Sykes was arrested in March of 2008 after attempting to rob two people parked outside an Indianapolis liquor store.(fn4) Sykes maintained that he had merely approached to speak to one of the car's occupants, a woman he knew.(fn5) The Government asserted he instead tried to rob them at gunpoint, and only aborted his plans after recognizing one of his intended victims.(fn6) While the federal district court found police information sufficient to conclude that Sykes had attempted robbery,(fn7) he was not convicted for that crime, pleading only to illegal firearm possession.(fn8) What he had been doing with the gun before his arrest only mattered inasmuch as possessing a firearm in connection with another felony lengthened his sentence.(fn9)
The majority of Sykes' sentence resulted from the fifteen-year minimum imposed by ACCA and triggered by his prior felony convictions.(fn10) Whether Sykes had attempted robbery made no difference for ACCA purposes-ACCA applies to sentencing for the federal offense of illegal firearm possession whenever the convict's history contains three qualifying predicate convictions.(fn11) These predicates may be any combination of "serious drug offenses" and "violent felonies."(fn12) ACCA defines "violent felonies," the category at issue in Sykes' case, as any offense punishable by at least a year of imprisonment that either (1) requires the element of actual, attempted, or threatened use of force; (2) is burglary, arson, extortion, or involves using explosives; or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another."(fn13) Sykes conceded his two 1996 robbery convictions qualified as ACCA predicate crimes under the first prong.(fn14) He disputed, however, the Government's claim that his 2003 vehicle flight should count as a violent felony under the third "otherwise involving" category(fn15)-the so-called "residual provision."(fn16)
The district court rejected Sykes' vehicle-flight argument(fn17)-which Sykes admitted was foreclosed by a recent Seventh Circuit decision(fn18)- and on appeal the Seventh Circuit affirmed.(fn19) In a 6-3 opinion written by Justice Kennedy, so did the U.S. Supreme Court.(fn20)
In the wake of Sykes v. United States, (fn21) district and circuit courts have uniformly found vehicle flight to be a violent felony or a "crime of violence" (a nearly synonymous term from the federal sentencing guidelines)(fn22) whether reaffirming their pre-Sykes interpretations,(fn23) considering statutes for the first time,(fn24) or reversing course on vehicle-flight laws previously held not to qualify as violent felonies.(fn25) The lower courts' across-the-board response reflects Justice Kennedy's broad declaration in Sykes that "[f]elony vehicle flight is a violent felony for purposes of ACCA."(fn26) However, the U.S. Supreme Court's prior guidance for interpreting ACCA, a summary opinion following on Sykes' heels, and parts of the Sykes opinion itself suggest the lower courts may be reading the case too broadly.
First, it is not obvious on its face that ACCA should treat all vehicle-flight convictions the same. Since ACCA's enactment, the U.S. Supreme Court has mandated a categorical approach to interpreting ACCA.(fn27) This categorical approach does not consider the particular commission of a crime by a particular defendant, but rather requires a court to look only to the statute and elements defining the offense in the abstract to determine whether it qualifies as an ACCA predicate.(fn28) Only if the state crime meets the definition of one of ACCA's predicate categories will it count towards triggering ACCA's sentence enhancement-ACCA's enumerated burglary predicate requires a set of generic elements,(fn29) for example, and a "serious drug offense" predicate must be punishable by ten years' imprisonment and involve manufacturing, distributing, or possessing a controlled substance with intent to manufacture or distribute.(fn30) But because states define their respective vehicle-flight offenses differently, it is not a given that every state's version will categorically meet the residual provision's threshold requirements.
Second, Rogers v. United States,(fn31) handed down just eleven days after Sykes, calls into question whether Sykes definitively gathers every vehicle-flight offense-no matter how defined-into the ACCA-predicate camp. In Rogers, the U.S. Supreme Court granted certiorari, summarily vacated, and remanded a Sixth Circuit opinion that had found violation of the Tennessee vehicle-flight statute to be a "crime of violence,"(fn32) the practical equivalent to a violent felony.(fn33) If Sykes stands for the proposition that vehicle flight, however defined under state law, always constitutes a violent felony, remanding Rogers serves no obvious goal not already served by denying certiorari and letting the lower court decision stand.
Finally, Sykes itself does not clearly compel uniformly bundling vehicle flight into ACCA's residual provision. Justice Kennedy noted that the Seventh Circuit opinion upheld in Sykes was only "in tension," rather than in direct conflict with, Eighth and Ninth Circuit cases excluding vehicle-flight convictions from the residual provision.(fn34) Sykes itself deploys several methods for determining whether to include vehicle flight in the residual provision but leaves murky which one controls the case's result.(fn35) Depending on which method was the dispositive basis, Sykes either justifies the lower court's lockstep response or, as Justice Kagan declares in her dissent, "decides almost no case other than this one."(fn36)
Significant periods of imprisonment hang in the balance. Congress designed ACCA to carry lengthy, incapacitating penalties,(fn37) and Sykes' own case demonstrates the heavy blow it delivers. Interpreting Sykes broadly thus threatens severe direct consequences for defendants whose vehicle-flight convictions would not have triggered ACCA in the past.(fn38) Further, Sykes' effect would be felt even in cases where ACCA does not apply: unlike ACCA, which only directly affects sentences for unlawful firearm possession, the Career Offender sentencing provisions apply during sentences for "crime(s) of violence" or "controlled substance offense(s)."(fn39) In 2009, convictions involving violence or drugs produced thirty-five percent of federal felony sentences.(fn40) Because courts have directly applied U.S. Supreme Court holdings regarding ACCA's residual provision when interpreting the similar residual provision of the U.S. Sentencing Guideline's Career Offender provisions,(fn41) Sykes' holding may trigger Career Offender sentencing provisions in similar cases involving prior vehicle-flight convictions.(fn42)
This Comment argues that Sykes should be read narrowly. Out of its hodge-podge of tests, only one-the Court's holding that the vehicle-flight statute's structure reflected Indiana's legislative judgment that vehicle flight poses inherent risks(fn43)-remains true to...
