Practicality

This week, on the same day that the US Supreme Court handed down the much-publicized Baze decision that lethal injection is just fine in this country, two other decisions were also published. These are less dramatic, and -- thankfully -- much shorter and simpler. Both, though, are important to our everyday practice as federal criminal defense lawyers. One is good and one is not, but we need to know both. I'll start with the bad news:

Burgess v. US -- even though a state may label a conviction as a misdemeanor, if it is punishable by more than one year, it is considered a felony in the context of federal drug laws. So, for enhancement by section 851 (which usually concerns us when it doubles the mandatory minimum from 5 to 10, or 10 to 20), a prior state misdemeanor for simple possession can serve as a predicate, if the state punishes that crime by more than one year. "Burgess had a prior South Carolina cocaine possession conviction, which carried a maximum sentence of two years but was classified as a misdemeanor under state law. The Federal Government argued that Burgess’ minimum federal sentence should be enhanced to 20 years under §841(b)(1)(A) because his South Carolina conviction was punishable by more than one year’s imprisonment."

The government prevailed. Ginsburg wrote for a unanimous Court that, "A state drug offense punishable by more than one year therefore qualifies as a 'felony drug offense,' even if state law classifies the offense as a misdemeanor." So his simple misdemeanor coke possession got him a mandatory minimum of 20 years.

Application: when reviewing your client's criminal history, watch for simple possession convictions, and make sure they are truly misdemeanors -- that is, punishable by no more than one year in prison. This make take some research if it is another jurisdiction, but could make a critical difference if your client is facing 851 enhancement. Even though the state label does not control, the state prescribed punishment does.

On a related note, the Tenth Circuit throws an interesting wrench into the analysis by the recent US v. Hill decision, previous blog, which is not yet final but damned interesting when dealing with Kansas prior convictions.

Remember, this a Burgess 'felony' is defined for the federal Controlled Substances Act, not for weapon possession or other guideline purposes.

Now the happier news: US v. Begay, a Supreme Court decision reversing our very own Tenth Circuit. The bottom line -- DUI's are not crimes of violence for Armed Career Criminal Act. Seems obvious, doesn't it? But the SCt had to take cert to explain to the lower courts that a DUI is not the same as a rape or murder.

Begay pled to felony possession of a firearm, usually a crime that carries a 10 year max. But he had a number of state DUI's. The district court found that Begay had "three or more prior violent felonies" and imposed a 15 year mandatory minimum under the ACCA. The Tenth Circuit went right along with that.

Writing for a 5-4 majority, Justice Breyer found that a DUI is not like the other violent felonies listed in the statute -- arson or use of explosive, for example. The next question was whether it posed a risk of serious physical injury to another, the secondary definition. "In determining whether this crime is a violent felony, we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." The Court concluded that Congress did not intend for a DUI to count as a violent felony. Although a felony DUI is admittedly risky, it does not create the degree of risk that is contemplated by the other examples. Moreover, "In our view, DUI differs from the example crimes—burglary, arson, extortion, and crimes involving the use of explosives—in at least one pertinent, and important, respect. The listed crimes all typically involve purposeful, 'violent,' and 'aggressive' conduct."
Placing it in context, "an offender’s criminal history is relevant to the question whether he is a career criminal, or, more precisely, to the kind or degree of danger the offender would pose were he to possess a gun. In this respect—namely, a prior crime’s relevance to the possibility of future danger with a gun—crimes involving intentional or purposeful conduct (as in burglary and arson) are different than DUI, a strict liability crime."

There is more to say about both of these opinions, as well as the 7-2 Baze, but this is long enough for Friday reading. Later.
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