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Criminal – Sentencing – ACCA – ‘Fleeing or Eluding’ – Violent Felony

Criminal – Sentencing – ACCA – ‘Fleeing or Eluding’ – Violent Felony

U.S. v. Hudson (Lawyers Weekly No. 12-01-0310, 10 pp.) (Niemeyer, J.) No. 07-4948, March 7, 2012; USDC at Florence, S.C. (Harwell, J.) 4th Cir. Full-text opinion.

Holding: A defendant’s “fleeing or eluding” conviction under Florida law is a violent felony that allows defendant to be sentenced under the Armed Career Criminal Act on a weapon possession charge, the 4th Circuit says.

The Florida statute, Fla. Stat. § 316.1935(2), punishes one who willfully flees or attempts to elude a marked law enforcement patrol vehicle with siren and lights activated. The district court, applying the law as it existed in 2007, determined defendant’s prior convictions under the Florida statute were indeed violent felonies and sentenced defendant under the ACCA to180 months in prison.

On appeal, the parties’ briefing has followed a protracted course occasioned by the intervening Supreme Court decisions in Begay v. U.S., 553 U.S. 137 (2008); Chambers v. U.S., 555 U.S.  122 (2009); and Sykes v. U.S., 131 S. Ct. 2267 (2011). Now, applying Sykes, we affirm. We also reject defendant’s contention that the ACCA’s “residual clause” contained in 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague.

The parties agree the previous fleeing-or-eluding convictions used to enhance defendant’s sentence did not involve either the “use, attempted use or threatened use of physical force against the person of another,” nor are they covered under § 924(e)(2)(B). The question is whether these convictions are violent under the “residual clause” of the ACCA. In Sykes, applying a risk-based test, the Supreme Court concluded that intentional vehicular flight poses a degree of risk at least equal to, if not greater than, the enumerated offenses of burglary and arson. However, the Indiana statute at issue in Sykes is different from the Florida statute, which penalizes conduct having different levels of risk with different punishments. Thus, this case presents the issue the Supreme Court indicated in Sykes it was not deciding

Nonetheless, applying the Sykes analysis to the base offense at issue here, § 316.1935(2), inevitably leads to the conclusion that the prohibited conduct of intentional vehicular fleeing itself, without more, is a violent felony. Based on a review of statistical information, the Sykes court found that vehicular flight presented a degree of risk at least as great as the risks associated with the enumerated offenses of arson and burglary. Even pursuits involving “safe” drivers will almost always end in a confrontation between the driver and police. The tiered statutory structure simply provides for increasing punishment with increasing levels of risk.

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