Begay v. United States--Armed Career Criminal Act

Is Mr. Begay an armed career criminal? That is what you and the Supreme Court will have to decide in this case. Specifically, this case explores what a "violent felony" is under the Armed Career Criminal Act (18 USC sec. 924(e)). What is at stake, as the facts will show, is the difference between 4 and 15 years in prison for many defendants convicted of DWI--driving while intoxicated. So let's tell the story of Mr. Begay, a Native American from New Mexico.

Important Facts and Law to Know

In September 2004 Larry Begay threatened to shoot his sister, Annie Begay, with a rifle if she didn't give him money. When informed that she didn't have any, he repeatedly pulled the trigger, but the gun did not fire. She called the Navajo Dep't of Law Enforcement while he was sleeping, and they found a .22 caliber rifle under a mattress in his room. In the US District Court for the District of NM, he pleaded guilty to one count of being a felon in possession of a firearm (violating 18 USC sec. 922(g)(1)) [His previous felony convictions for DWI, see below, made him a "felon"].

In cases like this the court requires that a Presentence Report ("PSR") be prepared to recommend a likely sentence. According to the report, Begay's total adjusted offense level was "15," with a criminal history category VI (it would be nice on some occasion to understand all this, wouldn't it?), which meant that his "guideline range" for sentencing was 41-51 months. Since the issue in the case will be whether his earlier convictions were "violent crimes," I ignore issues relating to understanding the federal sentencing guidelines....(maybe you will want to investigate that, however).

The government, which prosecuted Begay, objected to the PSR's failure to find Begay an "armed career criminal" under 18 USC sec. 924(e). The government contended that he was a career criminal because he had three prior felony DWI convictions. Here is the provision of the law that the government appealed to:

"(e)(1) In the case of a person who violates section 922 (g) of this title [which includes a felon in possession of a firearm--the crime to which Begay confessed he was guilty at the hearing] and has three previous convictions by any court ....for a violent felony or serious drug offense....such person shall be fined under this title and imprisoned not less than fifteen years..."

This is the "gist" of a most important federal law (the Armed Career Criminal Act]. You see how it enhances a person's sentence, in this case three-to-fourfold if s/he has three previous convictions for "violent felonies" or "serious drug offenses."

Thus, in order for Begay to be eligible for the 15 year minimum sentence, his previous convictions either had to be for a "violent felony" or "serious drug offense." No one contended that his were serious drug offenses. The question then was whether Begay's three previous felony convictions for DWI under New Mexico law constituted "violent felonies." Well, let's return to the statute just quoted above.

"(e)(2)(B) the term 'violent felony' means any crime punishable by imprisonment for a term exceeding one year...that.... (i) has 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..."

No one contended that Begay's earlier crimes fit into (i)--DWI is not considered the use of physical force against the person of another. The debate was whether the three previous DWI's were fit under (ii), especially the language "otherwise involves conduct that presents a serious potential risk of physical injury to another."

The government contended that driving under the influence of intoxicants was certainly conduct presenting a serious potential risk of physical injury to another. Thus, he should come under the 15 year minimum sentence of the law. But, the defense argued that if you really look at the language bolded immediately above, you have to focus on the word "otherwise." The defense contended that that little word meant that the conduct posing the serious risk of potential harm to someone had to be like the previous crimes listed: i.e., like "burglary, arson, or extortion." Obviously, the defense argued, DWI is not "like" these crimes.

If you understand that difference of opinion, friends, you have the entire case in a nutshell. Go back and re-read my summary if you don't understand that difference.

Decisions Below

The District Court bought the government's reading of the law, and decided that 188 months (more than 12 1/2 years) rather than 4 years, was a required/suitable jail term for Begay. On appeal, the 10th Circuit panel of three judges affirmed, but by a 2-1 vote (470 F3d 964 (2006)). Interestingly enough, however, the dissenting circuit judge, McConnell, is considered one of the brightest and most insightful younger judges (under 50) on the federal circuit today. He went into great detail in his dissenting opinion to show that the legislative history of the Armed Career Criminal Act suggested that the "otherwise" should be interpreted to mean "similar crimes" to the preceding rather than "all crimes" that might be violent.

Conclusion

Thus, the issue before the Supreme Court, unlike the Judge Alex case, will have potentially great impact on loads of defendants--those who have had repeated DWI's and then commit a crime such as "felon in possession" of a firearm. It is unlikely that Mr. Begay's personal situation will be taken into account however. If you looked at that, you would uncover some of the wrenchingly sad history of alcoholism, abuse and violence in some Native American culture. The defense, of course, wants this to be "in the background" of the decision. But it will be difficult enough for the Supreme Court to decide what "otherwise" means, much less to solve social problems the solution to which seems to elude us all.

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