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Supreme Court Decision Update - James v. US

hamB.jpgThe first of today’s Supreme Court cases is James v. US (PDF of the opinion). It won’t be getting much play in the news today, both because the other Supreme decision is about partial-birth abortions and because it’s an arguably narrow case. But it basically says that under Florida law, attempted burglary is a violent felony.

QuizLaw Analysis: This case is really about how to figure out whether certain prior convictions count as “violent felonies” under the ACCA, which could result in larger convictions. Alito and Scalia end up fighting over whether this case really offers and credible guidance to lower courts, or if it really only helps for cases also involving attempted burglary, or certain other narrow types of crime. I guess time will tell who is right.

What is the ACCA? The ACCA is the Armed Career Criminal Act (the ACCA), which is what this case is about. It’s a federal statute which says, as is relevant for the purposes of this case, that a when a defendant is convicted of possessing a firearm, and when that defendant is already a convicted felon, there is a mandatory sentence of at least 15 years in the clink if that defendant has three prior convictions for “violent felonies.”

What did the criminal defendant do in this case? Alphonso James was a convicted felon who got busted carrying a firearm. So he wound up pleading guilty to a federal court of possessing a firearm after being convicted of a felony, and in his plea, admitted to three prior felony convictions. One of these convictions was a Florida conviction for attempted burglary. During the sentencing hearing, the government argued that those prior convictions meant that James was subject to the ACCA’s mandatory 15-year minimum sentence. James argued that the attempted burglary conviction wasn’t a “violent felony” so it shouldn’t count.

The District Court said it was a violent felony, and the Eleventh Circuit agreed, affirming the ruling. And thus we are with the Supremes.

And who’s telling us the way things will be? Today, the majority opinion comes from Justice Alito, joined by Chief Justice Johnny and Justices Kennedy, Souter and Breyer. The Scalia filed a dissenting opinion, joined by Justices Stevens and Ginsburg. And Justice Thomas wrote a separate dissenting opinion of his own.

So Alito thinks attempted burglary is a violent crime? Yes. There are several arguments he has to address in nailing this down, however.

Does the ACCA apply to “attempted” crimes? Well that’s the first thing Alito addresses, and he says that “attempt” charges are not excluded, as James argued, by the text and structure of the ACCA. First, Alito looks at how the ACCA defines a “violent felony:”

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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury.

Everyone agrees that James’ crime of attempted burglary only counts as a “violent felony” if it qualifies as a crime that “otherwise involves conduct that presents a serious potential risk of physical injury,” as the rest of the above definition doesn’t apply (and while the ACCA references “burglary,” remember that James’ conviction was for attempted burglary).

So is attempted burglary something which poses a serious potential risk of physical injury to someone? Well, before we can figure out whether Florida’s crime of “attempted burglary” falls within this definition, Alito says we should first address James’ argument that “attempted” crimes are actually excluded by both the text and structure of the ACCA. And Alito says that just isn’t so.

James argued that, in the definition quoted above, clause (i) specifically references “attempt” while clause (ii) doesn’t - so this means, he argued, that “attempts” should be excluded from clause (ii) (and that’s the clause we’re concerned with, remember, because that’s where “conduct that presents a serious potential risk” comes from). But Alito says this rationale unnecessarily narrows the provision, since there is no suggestion that the clause is intended to exclude “attempted” crimes.

James also made an argument relying upon “the canon of ejusdem generis.” And before you ask, here’s how Alito explains what that means: “that when a general phrase follows a list of specifics, it should be read to include only things of the same type as those specifically enumerated.” So James said that the list of specifics in clause (ii) - burglary, arson, extortion, and crimes with explosives - are all completed crimes. So “conduct that presents a serious potential risk” should also only include completed offenses. But Alito says that the specific crimes do include attempts: “An unsuccessful attempt to blow up a government building, for example, would qualify…because it would ‘involv[e] [the] use of explosives.” But more importantly, he says the common attribute of those listed offenses isn’t so much that they’re completed crimes, but that they are all crimes which create significant risk of injury to others. And so those are just examples of what fits within the broad category of “conduct that presents a serious potential risk,” and nothing in the ACCA otherwise suggests that the list is exhaustive.

What about the legislative history? That’s the last thing Alito looks at, and he says that doesn’t help James either. James pointed to 1984 House deliberations, where there was a rejection of language specifically referring to attempted robbery or burglary. But Alito says that this isn’t probative, even if he were inclined to give weight to the legislative history, because it wasn’t “Congress’ last word on the subject.” The ACCA was amended in 1986 to include the “more expansive language that is at issue in this case.” And since that language wasn’t in the 1984 version, the 1984 legislative history just isn’t relevant.

Now you can ask the question you asked before.

Ok - so is attempted burglary something which poses a serious potential risk of physical injury to someone? Well the question is whether attempted burglary, as defined by Florida law, is such conduct. To figure this out, Alito says we should ignore the particular facts of James’ record, and instead just look at the fact that he was convicted, and then look at how Florida defines “attempted burglary.”

The language of the statute for “attempted” crimes says that the defendant simply has to take “any act toward the commission” of the crime. And James says that is pretty broad and would include the preparation of attempting burglary, where there really isn’t any risk of harm (“for example, acquiring burglars’ tools or casing a structure while planning a burglary”). But, says Alito, we have to look at how the Florida Supreme Court has actually narrowed this language - in a 1992 decision, the Florida Supremes said that preparation alone wasn’t enough. So the important question here is “whether overt conduct directed toward unlawfully entering or remaining in a dwelling, with the intent to commit a felony therein” (which is how Florida defines burglary) is conduct with risk of physical injury to others.

And Alito says it is. Look at the other things listed in clause (ii), he says - is the risk associated with those crimes, particularly committed burglary, similar to the risks associated with attempted burglary? With burglary, the risk isn’t just from the fact that someone has illegally entered someone else’s property, but also from a possible face-to-face confrontation with the burglar by the property owner, the cops, or even just a witness. And that risk doesn’t come from the completion of burglary, because it pops up before a burglary is finished. So “[a]ttempted burglary poses the same kind of risk,” where an intruder could be interrupted mid-burglary. Rulings from federal appellate courts and language from the US Sentencing Commission regarding the Sentencing Guidelines also support this determination.

But, James argues, not every burglary attempt includes such a risk. Alito says it’s possible to think of a realistic situation where attempted burglary doesn’t include “a realistic risk of confrontation or injury to another,” but that the “ACCA does not require metaphysical certainty.” The ACCA speaks of “potential risk.” Hell, argues Alito, all completed burglaries fall within the ACCA, even though some of those might not have had any risk of injury to others. Besides, the precedent for this approach doesn’t require every situation to have a potential injury risk, just that there is a risk in the ordinary case. And Alito says there is a risk in the ordinary case of attempted burglary.

James also tried to argue that Florida’s definition of “burglary” differs from “general burglary” because it includes not just entry into a structure itself, but entry onto a structure’s “curtilage” (certain surrounding property). Alito says this is a distinction, yes, but it doesn’t matter. That would only matter if we were looking at the ACCA’s use of “burglary,” which would be this “general burglary.” But we’re looking at the “risk of injury” language instead, remember, which doesn’t have to tie to “general burglary.” And the risk posed by attempting to enter a structure’s curtilage is comparable to the risk of trying to enter the structure itself, Alito says, so thanks for playing.

What about the Sixth Amendment? Yeah, James tried to argue that there was a Sixth Amendment issue because this decision amounts to judicial fact finding. But Alito says that’s bunk, because the court is just doing statutory interpretation - in fact, the approach used specifically avoided looking at the facts of James’ specific situation.

And why did the Scalia dissent? The Scalia wrote a lengthy dissent, joined by Justice Stevens and Ginsburg. He thinks Alito’s whole approach to this problem was wrong because he says it offers no guidance for future situations:

This crime, the Court says, does “involv[e] conduct that presents a serious potential risk of physical injury to another.” That gets this case off our docket, sure enough. But it utterly fails to do what this Court is supposed to do: provide guidance concrete enough to ensure that the ACCA residual provision will be applied with an acceptable degree of consistency by the hundreds of district judges that impose sentences every day.

And if a district judge is looking at a crime that isn’t directly analogous to one of the four enumerated crimes (burglary, arson, extortion, or the use of explosives), Alito hasn’t given the judge anywhere else to look or any other tools to use. Scalia then provides his own way of dealing with all this, but since his way lost, I’ll leave it for you to read on your own if you’re so inclined.

And what about Thomas? Well he goes back to a concurrence he penned in 2005, reiterating his thought that this section of the ACCA suffers from a “constitutional infirmity.” He says it makes the lower court make its own finding in order to increase the sentence (in this case, a finding that James’ attempted burglary conviction was a “violent felony”), and that goes against the Court’s recent rulings that judicial factfinding can’t be done to support increased sentences.