It took less than twenty-four hours before my brother Carlos Moctezuma García, one-half (along with my other brother Raúl) of García & García Law and patrocinador of this blog, fielded a question about whether last week’s Supreme Court decision holding that vehicle flight constitutes a violent felony under the Armed Career Criminal Act (ACCA) applies to the crime of violence type of aggravated felony. See Sykes v. United States, No. 09-11311, slip op. (June 9, 2011) (Kennedy wrote for Roberts, Breyer, Alito, Sotomayor; Thomas concurring in the judgment; Scalia dissented; Kagan dissented and Ginsburg joined). The likely answer is no.
It’s not a surprise that Sykes came onto the radar of some immigration law-minded folks. The ACCA imposes a serious sentencing enhancement if someone is convicted of being a felon in unlawful possession of a firearm after having been convicted of three previous violent felonies. 18 U.S.C. § 922(a)(2). The ACCA defines “violent felony” in language that closely resembles the crime of violence definition used by the INA’s aggravated felony provision.
The ACCA defines violent felony as an offense punishable by at least one year of imprisonment and 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 use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).
In comparison, INA § 101(a)(43)(F) defines a crime of violence by referencing 18 U.S.C. § 16 which, in turn, defines crime of violence as “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
While the first prong of the ACCA’s definition and the definition used by the INA are almost identical, there is greater difference between the second prongs of each definition. While the ACCA’s second prong requires that the offense “involve conduct that presents a serious potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii), the definition that the INA uses requires “substantial risk that physical force…may be used,” 18 U.S.C. § 16(b).
The key difference is in the focus of each definition. The ACCA focuses on the likelihood that someone will be injured as a result of committing the offense. Sykes, No. 09-11311, slip op. at 6 (“The question, then, is whether Indiana’s prohibition on flight from an officer by driving a vehicle…falls within the residual clause because, as a categorical matter, it presents a serious potential risk of physical injury to another.”).
In contrast, the INA’s chosen definition focuses on the substantial risk that physical risk will be used during commission of the crime. Leocal v. Ashcroft, 543 U.S. 1, 11 (2004) (“This is particularly true in light of §16(b)’s requirement that the ‘substantial risk’ be a risk of using physical force against another person ‘in the course of committing the offense.’”).
The Leocal Court explained this distinction with regard to the definition of crime of violence used in the U.S. Sentencing Guidelines, a definition that is nearly identical to the ACCA’s definition: “Thus, §16(b) plainly does not encompass all offenses which create a “substantial risk” that injury will result from a person’s conduct. The ‘substantial risk’ in §16(b) relates to the use of force, not to the possible effect of a person’s conduct.” Leocal v. Ashcroft, 543 U.S. 1, 10 n.7 (2004).
Because the Sykes Court was considering the ACCA definition, its holding can be read to mean only that vehicle flight necessarily “‘involves conduct that presents a serious potential risk of physical injury to another.’” Sykes, No. 09-11311, slip op. at 11 (quoting 18 U.S.C. § 942(e)(2)(B)(ii)). This does not necessarily mean that fleeing with the use of a vehicle also necessarily involves a substantial risk of using physical force. Compare United States v. Charles, 301 F.3d 309, 314 (5th Cir. 2002) (explaining that an offense is a crime of violence under the U.S. Sentencing Guidelines § 4B1.2(a)(2) definition if the crime “presents a serious potential risk of injury to a person”), with Brieva-Perez v. Gonzales, 482 F.3d 356, 360 (5th Cir. 2007) (“Charles…does not extend to § 16 crime of violence cases….”).
Two possible complications appear. First, the Sykes Court explained in dicta that “Risk of violence is inherent in vehicle flight.” Sykes, No. 09-11311, slip op. at 7. This statement conceivably could be used no matter what the definition of crime of violence that applies is concerned—the ACCA or INA.
In a similar vein, the Court later wrote, “Serious and substantial risks are an inherent part of vehicle flight.” Sykes, No. 09-11311, slip op. at 12. This “substantial risk” language resembles the language of 18 U.S.C. § 16(b). However, my reading of this sentence alongside the prior paragraph of the opinion suggests that the Court was referring to the substantial risk of bodily injury. Courts might disagree with me, but that’s what I take from the decision’s reference to “substantial risk of bodily injury to another” just three sentences earlier. Sykes, No. 09-11311, slip op. at 12.