Preview: Violent Felonies and Crimes of Violence: Where Does the Tenth Circuit Stand, A Circuit Split Survey


Megan Embrey

Repeat Offender, Habitual Offender, Recidivist; Violent Felonies and Crimes of Violence.  What do these terms mean in federal court?  It depends.  It depends on the language of the law upon which the defendant was convicted.  It depends on the criminal philosophy of the appellate circuit reviewing the case.  But most importantly, it depends on the interpretation of Supreme Court rulings pertaining to “violent felonies” under the Armed Career Criminal Act (ACCA) and “crimes of violence” under the United States Sentencing Guidelines (USSG).  The ACCA and USSG were created in the mid-1980s to address the increasingly publicized problem of recidivism; however, it seems that such methods have increased litigation and inundated the courts with sentencing appeals.

The ACCA increases the mandatory minimum sentence for a felon in possession of a firearm from 10 years to 15 years if the person has three previous, separate, convictions for a “violent felony” or a serious drug offense.  Similarly, the USSG increases a person’s base offense level depending on previous convictions for a “crime of violence.”  The language defining “violent felonies” and “crimes of violence” are nearly identical and precedent defining one is often used in judicial reasoning to define the other. Each of the definitions include enumerated offenses that are considered “crimes of violence” or “violent felonies” as well as a residual clause that encompasses crimes criminalizing actions that use, attempt to use or threaten to use physical force against another. 

Between September 1, 2009 and August 31, 2010, the Tenth Circuit alone published six cases interpreting “violent felonies” and “crimes of violence.”  A survey of these six cases encompasses a variety of crimes and reveals two circuit splits as well as the possibility of joining a third.

First, the Tenth Circuit case United States v. Rivera-Oros conflicts with the reasoning of a 2003 Ninth Circuit case, United States v. Wenner.  The two circuits disagree as to whether the Supreme Court’s definition of “burglary,” one of the ACCA’s enumerated felonies, should be applied to “burglary of a dwelling” under the USSG.  The Ninth Circuit found that the Court’s definition was dispositive and therefore the state’s residential burglary statute did not define a crime of violence.  The Tenth Circuit explicitly rejected the Ninth Circuit’s reasoning and found that the Supreme Court’s definition did not apply because “burglary” and “burglary of a dwelling” were categorically different crimes and a new definition must be created.  As a result of its different approach, the Tenth Circuit found the defendant committed a “crime of violence.” 

The Tenth Circuit more carefully considered the procedure outlined by the Supreme Court and the intent of the Sentencing Commission in enumerating “burglary of a dwelling” as opposed to mere “burglary.”  The Ninth Circuit seems to ignore both the crux of the Court’s decision and the legislative history behind the Commission’s choice of enumerated crimes.    

The second split concerns fleeing a police officer and whether such a crime poses a serious potential risk to others under the residual clause.  In 2009, the Eighth Circuit concluded in United States v. Tyler that fleeing a police officer is not a crime of violence under the USSG because some of the actions criminalized do not typically involve conduct that presents a serious risk of physical injury to another, or conduct that is violent and aggressive.  A violation of the fleeing statute did not require confrontation with others and therefore was not a risk of the conduct.  The Tenth Circuit in the 2010 cases of United States v. Wise and United States v. McConnell found the exact opposite.  In these cases the court found the fleeing conduct to pose a serious potential risk to others because of the increased risk of confrontation with third parties and law enforcement officers.

Again, the Tenth Circuit conducts a more reasoned analysis because it emphasizes the language of the residual clause, a potential risk as opposed to an actual risk, and the Eighth Circuit’s attempt to differentiate dissenting circuits is erroneous as it misinterprets the holdings of those differing cases.  Furthermore, in a case decided just months prior to the Tyler decision a different appellate panel found that there was a serious potential risk of confrontation and harm to another when fleeing a police officer and such a crime is a “crime of violence.” 

The third split to be considered in a Tenth Circuit survey is the use of juvenile adjudications as predicate offenses for sentencing enhancements.  In light of the Supreme Court decisions finding the due process required for facts for sentencing enhancements, a one sided circuit split has emerged with the Ninth Circuit on one side and the Eighth, Third, Eleventh, First, and Sixth Circuits on the other. 

The Court found prior convictions could be considered in sentencing without additional due process safeguards because the defendant had already received fair notice, proof beyond a reasonable doubt, and a jury trial in the context of the prior conviction.  The Ninth Circuit reasoned that juvenile adjudications do not qualify as a prior conviction because they lacked a jury decision.

In contrast, the majority of circuits have found that a jury trial is not dispositive of a prior conviction because the Court emphasized the reliability of convictions rather than the specific due process procedures required for that conviction.  All that is required for sufficient reliability is that the defendant, juvenile or adult, receive all the due process required at the time of conviction.  Because, according to the Supreme Court, the due process clause does not require jury trials in juvenile adjudications, the absence of a jury does not preclude adjudications from being a predicate offense under the ACCA.

The line of cases declaring adjudications to be predicate offenses show that the courts did not engage in an analysis of the realities of the reliability of a juvenile adjudication or the legislative history regarding the juvenile justice system.  Furthermore, the more recent opinions are merely carbon copies of the Eighth Circuit’s, the first opinion condoning adjudications as predicate offenses; the later opinions largely consist of quotations and paraphrases from that court.  If the Tenth Circuit is ever presented with the issue, its history of diverging from the Ninth Circuit and its case law on a similar juvenile issue make it unlikely that it would adopt the Ninth Circuit’s reasoning or engage in a more critical review of the meaning of a juvenile adjudication. 

Despite this large circuit split and lack of unique or robust reasoning, the Supreme Court has not yet ruled on this issue and has, in fact, turned down numerous opportunities to do so.  Furthermore, the Ninth Circuit has recently upheld a California sentencing enhancement under the ACCA based on a defendant’s juvenile adjudication.  The Ninth Circuit found its earlier holding, while still valid, does not reflect clearly established federal law as promulgated by the Supreme Court and therefore the California court did not err in its decision.

Thus, the Court may soon be forced to finally rule on this divisive issue. Certiorari is likely because of the circuit split, because the Supreme Court has recently taken on several issues concerning the application of the ACCA and the sentencing of juveniles, and because at least one court has based its decision on the lack of clearly established federal law.  But, how will the Court address the implications of adjudications in sentencing enhancement structures? Will the Court redefine the juvenile court?  Will the goals of the juvenile system be eradicated or modified?  Will the Court investigate the reliability of juvenile adjudications in deciding if they are the equivalent to an adult felony conviction?  Or, will the Court simply decide that, contrary to their previous decisions, the ACCA is too vague to continue and thereby force Congress to reform its Act for the first time since 1986.  The answer of course is, it depends. 

For further explanation and analysis, see Megan Embrey, Violent Felonies and Crimes of Violence: Where Does the Tenth Circuit Stand, A Circuit Split Survey, 88 Denv. U. L. Rev. __ (forthcoming 2011).