FLEEING FROM THE POLICE A VIOLENT FELONY?: A JUDICIAL APPROACH TO THE ARMED CAREER CRIMINAL ACT

FLEEING FROM THE POLICE A VIOLENT FELONY?: A JUDICIAL APPROACH TO THE ARMED CAREER CRIMINAL ACT Paul C. Jensen, Jr.* I. INTRODUCTION On January 11, 2008, Richard Harrimon pled guilty to two counts of possession of a firearm by a convicted felon, a crime carrying a maximum sentence of ten years imprisonment. 1 Harrimon had one prior conviction for burglary of a building and two prior convictions for evading arrest or detention by use of a vehicle. 2 At sentencing, the prosecution argued that Harrimon qualified for a sentence enhancement under the Armed Career Criminal Act (ACCA), which imposes a more stringent fifteen-year mandatory minimum sentence on an offender who has three prior convictions for a violent felony or a serious drug offense. 3 The probation officer concluded that the ACCA did not apply and the government objected. 4 The district court similarly found that the ACCA did not apply and sentenced Harrimon to concurrent eight-year terms of imprisonment * B.A., Fairfield University, 2008; J.D., Rutgers University School of Law Camden, May 2011. 1. United States v. Harrimon, 568 F.3d 531, 532 (5th Cir. 2009), cert. denied, 130 S. Ct. 1015 (2009). See also 18 U.S.C. 922(g)(1) (2005) (prohibiting persons with felony convictions from possessing firearms); 18 U.S.C. 924(a)(2) (2006) (providing that a violation of 922(g)(1) is punishable by up to ten years in prison). 2. Harrimon, 568 F.3d at 532. 3. Begay v. United States, 553 U.S. 137, 138 (2008) (quoting 18 U.S.C. 924(e)(1) (2006)). The prosecution filed two memorandums in support of its position that the ACCA applied... [and] objected orally at the sentencing hearing. Brief of Plaintiff-Appellant at 4 n.3, United States v. Harrimon, 568 F.3d 532 (2009) (No.08-10690). 4. Harrimon, 568 F.3d at 532. 819

820 RUTGERS LAW JOURNAL [Vol. 42:819 followed by a three-year period of supervised release. 5 However, on appeal the Court of Appeals for the Fifth Circuit reversed and remanded, holding that evading arrest or detention by use of a vehicle was a violent felony for the purposes of the ACCA. 6 On January 28, 2008, Victor Harrison pled guilty to possession of a firearm by a convicted felon. 7 He had three prior convictions: (1) fleeing or attempting to elude police at high speed; (2) possession of a controlled substance with intent to sell, manufacture, or deliver; and (3) fleeing or attempting to elude police. 8 Harrison admitted that the first two convictions qualified as violent felonies, but argued that the last conviction did not. 9 The district court concluded that it did qualify and sentenced Harrison to seventeen years and six months in prison followed by five years of supervised release. 10 On appeal, the Court of Appeals for the Eleventh Circuit vacated and remanded, holding that Harrison s conviction for fleeing or attempting to elude police did not fall within the scope of the kind of crimes that the ACCA was intended to reach. 11 As these cases demonstrate, there is considerable disagreement among the circuits about what crimes are intended to be reached by the ACCA. Even the Supreme Court has lamented that only Congress can rescue the federal courts from the mire of interpreting the ACCA. 12 However, the fact that Congress has remained silent in the face of numerous interpretation controversies over the last twenty-three years makes legislative intervention seem unlikely. Therefore, the courts will have to continue applying the ACCA without legislative assistance. This Note will not join in the decades-long debate over the merits of whether federal sentencing guidelines are appropriate. 13 Instead, building 5. Id. 6. Id. at 537. 7. Brief of Defendant-Appellant at 3, United States v. Harrison, 558 F.3d 1280 (11th Cir. 2009) (No. 08-12636). 8. Harrison, 558 F.3d at 1282. 9. Id. 10. Id. at 1283. 11. Id. at 1296. 12. Chambers v. United States, 555 U.S. 122, 132 (2009) (Alito, J., concurring). 13. Generally, supporters argue that mandatory minimum sentencing laws are necessary for four reasons. First, mandatory sentences promote fairness by increasing the predictability and uniformity of sentences for similarly situated offenders. Mandatory Minimum Sentencing Laws The Issues: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 110th Cong. 108 (2007) (statement of Richard B. Roper, United States Attorney, Northern District of Texas). Second, uniformity in sentencing will deter others from committing the same crime because they will know with certainty what

2011] FLEEING FROM THE POLICE 821 upon the assumption that the ACCA will continue to have a place in federal courthouses, this Note will examine the text and legislative history of the ACCA and then document how the ACCA has been interpreted by the United States Supreme Court, specifically how the Court has set up a framework for examining crimes that are not enumerated within the ACCA. After this analysis, this Note will argue that the current framework established by the Court is fundamentally flawed because it does not provide the lower courts with guidance on how to apply the ACCA consistently among similar statutes, as evidenced in the split between the Courts of Appeals for the Fifth and Eleventh Circuits over whether fleeing by vehicle is a violent felony. This Note will conclude that the current framework can be modified so that it provides a coherent and consistent framework. This Note will demonstrate the new framework by applying it to the split over fleeing by vehicle and concluding that the crime is not included within the ACCA. II. THE TEXT AND LEGISLATIVE HISTORY OF THE ACCA Under the ACCA, it is unlawful for a person who has previously been convicted of a felony to possess a firearm. 14 A violation of this provision time they will have to serve. Id. Third, they enhance public safety be incapacitating dangerous offenders for significant periods of time. Id. Fourth, prosecutors rely on them because they are able to induce cooperation by relieving the offender from the mandatory minimum sentence. Id. On the other hand, opponents argue that mandatory minimum sentencing is inconsistently applied because it changes how prosecutors make charging decisions and that mandatory minimum sentencing is not a deterrent because, since criminals do not believe that they will be caught, changing the length of the punishment has no effect. Id. at 114 15 (testimony of Marc Mauer, Executive Director, The Sentencing Project). Furthermore, critics argue that one-size-fits-all sentencing is unfair because it require[s] judges to put blinders on to the unique facts and circumstances of particular cases, producing sentences that can only be described as bizarre. Id. at 46, 43 (statement of J. Paul G. Cassell, United States District Court, District of Utah, on behalf of the Judicial Conference of the United States). In addition, the money used to keep offenders in prison for longer sentences, critics contend, could be better used on other programs, law enforcement or otherwise, that would serve the purported goals of mandatory minimum sentencing to a greater degree. Id. at 76 77. 14. 18 U.S.C. 922(g) states in relevant part: It shall be unlawful for any person... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. Id. (alteration in original).

822 RUTGERS LAW JOURNAL [Vol. 42:819 ordinarily carries a maximum sentence of ten years imprisonment. 15 However, the ACCA, as amended in 1986, provides a fifteen-year mandatory minimum sentence for those who violate the ACCA and have three prior convictions for a violent felony or a serious drug offense. 16 The term violent felony is defined in the statute as any crime punishable by imprisonment for a term exceeding one year 17 that has as an element the use, attempted use, or threatened use of physical force 18 or is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another. 19 While not new to the federal justice system, the 1980s marked a significant shift in Congress toward mandatory minimum sentences for violent and drug offenses. 20 Previously, the dominant view in the field of corrections was that prisons existed primarily to cure and rehabilitate inmates. 21 However, in the 1980s, [c]ritics posited that rehabilitation was difficult to accomplish and measure and that wide-open judicial discretion and parole actually exacerbated the problems of controlling crime. 22 This shift in opinion prompted Congressional action and in 1984, after much deliberation, taking of testimony, and a careful review of the extant legal scholarship on this issue, 23 Congress passed the Sentencing Reform Act, which created within the judiciary an independent, bipartisan agency known as the United States Sentencing Commission. 24 This same push toward mandatory sentencing prompted Senator Arlen Specter of Pennsylvania to introduce legislation that would ultimately become the ACCA. 25 New studies had indicated that chronic offenders were 15. 18 U.S.C. 924(a)(2). The statute provides that [w]hoever knowingly violates [ 922(g)]... shall be fined as provided in this title, imprisoned not more than 10 years, or both. Id. 16. Id. 924(e)(1). 17. Id. 924(e)(2)(B). 18. Id. 924(e)(2)(B)(i). 19. Id. 924(e)(2)(B)(ii). 20. U.S. SENTENCING COMM N, SPECIAL REPORT TO THE CONGRESS: MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM (1991), http://www.ussc.gov/legislative_and_public_affairs/congressional_testimony_and_reports /Mandatory_Minimum_Penalties/199108_RtC_Mandatory_Minimum.htm. 21. Id. 22. Id. 23. Ilene H. Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J. CRIM. L. & CRIMINOLOGY 883, 898 99 (1990). 24. 28 U.S.C. 991(a) (1984). 25. See Career Criminal Life Sentence Act of 1981, S. 1688, 97th Cong. (1981).

2011] FLEEING FROM THE POLICE 823 committing a disproportionate number of violent or drug-related crimes. 26 To remedy this situation, Senator Specter intended his legislation to provide lengthy mandatory sentences for habitual violent offenders for whom rehabilitation had proved impossible. 27 Indeed, the House Judiciary Committee stated that the ACCA was designed to increase the participation of the Federal Law enforcement system in efforts to curb armed, habitual (career) criminals. 28 Thus, with agreement that habitual offenders needed to be locked up for longer periods, the question became what particular segment of the career criminal population the Federal Government should target. 29 Congress answer that the government should target burglary and robbery came in the form of the ACCA, enacted in 1984. 30 26. The House Judiciary Committee relied on three major studies for the proposition that chronic, unrehabilitated offenders were committing the lion s share of violent and drugrelated crimes. First, the committee referred to a study conducted by the University of Pennsylvania, which examined the delinquency records of all males born in 1945 in Philadelphia from their tenth to eighteenth birthdays. H.R. REP. NO. 98-1073, at 1 (1984) (citing generally MARVIN E. WOLFGANG ET AL., DELINQUENCY IN A BIRTH COHORT (1972)). The study concluded that chronic offenders which comprised 6 percent of the study group committed 61 percent of all homicides, 76 percent of all rapes, 73 percent of all robberies, and 65 percent of all aggravated assaults perpetrated by members of the group. Id. at 2. Second, they relied on a Rand Corporation study, which provided that, based on prisoner self-reporting, 100 of these offenders may have committed 490 armed robberies; 720 burglaries and approximately 4,000 other serious offenses. Id. (citing generally MARK A. PETERSON ET AL., DOING CRIME: A SURVEY OF CALIFORNIA PRISON INMATES (1980)). Third, they relied on a study out of Temple University, which followed 243 heroin addicts in Baltimore, Maryland for an 11-year span, and concluded that each offender was committing, on average, a crime on 248 out of 365 days. Id. (citing John C. Ball et al., The Day-to-Day Criminality of Heroin Addicts in Baltimore A Study in the Continuity of Offence Rates, 12 DRUG & ALCOHOL DEPENDENCE 119 (1983)). 27. See 134 CONG. REC. 15, 806 07 (daily ed. June 23, 1988) (statement of Sen. Specter) ( The critical need to target the habitual offender was also one of the major findings in 1973 by the National Commission on Criminal Justice Standards and Goals, of which I was a member. One of the Commission's key recommendations included the need to incarcerate unrehabilitative repeat violent felons for lengthy periods.... It is my view that the only way to deal with such hardened criminals is with stiff prison terms with no prospect for parole. It was this view that led to my sponsorship of the Armed Career Criminal Act which was enacted during the 98th Congress. ). 28. H.R. REP. NO. 98-1073, at 1 (1984). 29. Id. at 3; see also Career Criminals Amendment Act of 1986, Pub. L. No. 99-570, 1402, 100 Stat. 3207, 3239 (1986). 30. Supra note 28, at 3. Senator Specter described the rationale for choosing burglary and robbery, stating that: Robberies and burglaries are the most damaging crimes to society. Robberies and burglaries occur with far greater frequency than other violent felonies, affect many

824 RUTGERS LAW JOURNAL [Vol. 42:819 In 1986, the ACCA was amended by the Career Criminals Amendment Act of 1986. 31 This amendment expanded the predicate offenses triggering the sentence enhancement from robbery or burglary to a violent felony or a serious drug offense. 32 It then removed the definitions of robbery and burglary, replacing them with a definition of violent felony. 33 This expansion of the predicate offenses was the result of a compromise between two bills. The first, introduced in the Senate by Senator Specter and in the House by Representative Wyden, used the language crime of violence, defined as 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 any felony 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. 34 A much narrower bill, introduced in the House by Representatives Hughes and McCollum, would have defined the predicate offenses as any State or Federal felony that has as an element the use, more people, and cause the greatest losses. A person is 40 times more likely to be a victim of robbery than of rape. Robberies involve physical violence or the threat thereof, being deliberately directed against innocent individuals. Burglaries involve invasion of their homes or workplaces, violation of their privacy, and loss of their most personal and valued possessions. Often 30 percent of robberies these offenses result in physical injuries; usually 90 percent for robberies they result in significant financial loss; always they inflict psychological injury. Such crimes force people to live not in freedom, but in fear. Most robberies and burglaries are committed by career criminals. A high percentage of robberies and burglaries are committed by a limited number of repeat offenders. Many commit scores of offenses. Some studies estimated that the majority of these offenses are committed by career criminals. Career criminals often have no lawful employment; their full-time occupation is crime for profit and many commit crimes on a daily basis. In New York City, for example, studies showed that only 1,100 recidivists were probably responsible for most of the 100,000 robberies each year. Another study showed that only 49 imprisoned robbers admitted committing 10,000 felonies over 20 years. A third study showed that only 6 percent of those born in 1945 who committed crimes were responsible for 80 percent of the offenses of their age group. Various studies also indicate that for every time a career criminal is arrested for robbery or burglary, he has probably committed 10 to 20 such crimes. Career criminals commit robberies and burglaries interchangeably. Id. (statement of Sen. Specter). 31. Career Criminals Amendment Act of 1986, supra note 29, at 3239. 32. Id. 33. Id. 34. S. 2312, 99th Cong. (1986); H.R. 4639, 99th Cong. (1986).

2011] FLEEING FROM THE POLICE 825 attempted use, or threatened use of physical force against the person of another. 35 The result, for better or worse, was the current legislation. Senator Specter, when introducing his version of the bill in the Senate, stated that the ACCA ha[d] been successful with the basic classification of robberies and burglaries as the definition for career criminal, however, the time ha[d] come to broaden that definition so that [it would have] a greater sweep and more effective use.... 36 In addition, there was also great concern in Congress that property crimes were going to be excluded. 37 Thus, the definition of violent felony was expanded to the current version. 38 It is clear, then, that Congress focused its efforts on career offenders those who commit a large number of fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at least a potential threat of harm to persons. This concern was not limited to offenders who had actually been convicted of crimes of violence against persons. 39 III. THE SUPREME COURT S CATEGORICAL APPROACH TO THE ACCA The ACCA, as amended in 1986, soon proved to be incredibly difficult to apply consistently. While the 1984 version applied solely to burglary and robbery and defined those predicate offenses within the statute, 40 the 1986 version merely listed certain offenses, burglary, arson, or extortion, involves use of explosives, with no included definitions, and included any offense which otherwise involves conduct that presents a serious potential risk of physical injury to another. 41 This presented two questions to the Court: how 35. H.R. 4639, 99th Cong. (1986). 36. 132 CONG. REC. 7697 (1986). 37. [C]rimes against property... should be considered as predicate offenses. Armed Career Criminal Legislation H.R. 4639 and H.R. 4768: Hearing Before the Subcomm. on Crime of the H. Comm. on the Judiciary, 99th Cong. 15 (1986) (statement of James Knapp, Deputy Assistant Attorney General, Criminal Division, U.S. Dept. of Justice). 38. After hearing about crimes against property that involve physical force, the House Committee on the Judiciary agreed to add the crimes punishable for a term exceeding one year that involve conduct that presents a serious potential risk of physical injury to others. This [added] State and Federal crimes against property such as burglary, arson, extortion, use of explosives and similar crimes as predicate offenses where the conduct involved presents a serious risk of injury to a person. Id. at 3. It is from this that the statute acquired subsection (ii). 39. Taylor v. United States, 495 U.S. 575, 587 88 (1990). 40. See Armed Career Criminal Act of 1984, Pub. L. No. 98-473, 1803, 98 Stat. 2185 (1984), repealed by Career Criminals Amendment Act of 1986, supra note 29, at 3239. 41. 18 U.S.C. 924(e)(2)(B)(ii) (2006).

826 RUTGERS LAW JOURNAL [Vol. 42:819 to define the enumerated offenses, and what offenses would be covered by the otherwise clause. As described below, the Court ultimately decided upon a categorical approach to interpreting the ACCA. For the enumerated offenses, this means that sentencing courts have to apply generic definitions, rather than the individual state definitions. 42 For offenses that otherwise involve conduct that presents a serious risk of physical injury, this means that the sentencing court must look at the crime as it is ordinarily committed and determine: (1) whether that conduct is sufficiently purposeful, violent, and aggressive to be similar in kind to the enumerated offenses; and (2) whether that conduct is sufficiently similar in degree of risk posed to the enumerated offenses. 43 A. The Genesis of the Categorical Approach: Defining Burglary and Robbery The amended language of the ACCA first came before the court in 1990 in Taylor v. United States. 44 The Taylor Court held that burglary, undefined in the amended ACCA, did not refer to state definitions of the offense, but instead to the generic, contemporary meaning of burglary which contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime. 45 The Court went on to outline the categorical approach 42. E.g., Taylor, 495 U.S. at 588 91. 43. Chambers v. United States, 555 U.S. 122, 128 (2009) (quoting Begay v. United States, 553 U.S. 137, 144 45 (2008) (citation omitted)). 44. 495 U.S. 575 (1990). The facts of the case are thus: In January of 1988, Arthur Taylor pled guilty to possession of a firearm by a convicted felon. Taylor had four prior felony convictions: one for robbery, one for assault, and two for burglary. At sentencing, the prosecution sought to apply the ACCA, but Taylor argued that the two burglary convictions did not apply because they did not involve conduct that presents a serious potential risk of physical injury to another. Id. at 579 (quoting 924(e)(2)(B)(ii)). The district court applied the ACCA and accordingly sentenced Taylor to fifteen years imprisonment. The Court of Appeals for the Eighth Circuit affirmed Taylor s sentence, holding that absent a definition of burglary in the statute, it was up to the states to define burglary for ACCA purposes. Id. at 579 80 (citing United States v. Taylor, 864 F.2d 625, 627 (8th Cir. 1989)). The Supreme Court, in an opinion written by Justice Blackmun, reversed and remanded. Taylor, 495 U.S. at 602. 45. Id. at 598; see also MODEL PENAL CODE 221.1 (2001) ( A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter. ). As the Court notes, this

2011] FLEEING FROM THE POLICE 827 to applying the ACCA. 46 Rather than have the trial courts look at the particular circumstances of each defendant s crime to determine whether the ACCA applies, the court should look only to the fact of conviction and the statutory definition of the prior offense. 47 However, recognizing that some states statutes are broader than others, the Court stated that the categorical approach permits trial courts to go beyond the mere fact of conviction and look to the indictment or information and jury instructions. 48 After Taylor, there was still an open question of how deep the trial court is permitted to delve into the facts of the prior predicate offenses in order to determine whether the ACCA s sentence enhancement should be applied. The problem was that some states defined burglary more broadly than the generic definition given by the Taylor Court. 49 This question was answered in Shepard v. United States, 50 where the Court held that the sentencing court is limited to the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by generic definition is nearly identical to the definition that was included in the 1984 version of the ACCA. Taylor, 495 U.S. at 598; see also Armed Career Criminal Act of 1984, supra note 40 (defining burglary as any felony consisting of entering or remaining surreptitiously within a building that is property of another with intent to engage in conduct constituting a Federal or State offense ). 46. Taylor, 495 U.S. at 602 47. Id. 48. Id. 49. For example, some states extend the definition of burglary to include boats or cars. See, e.g., MASS. GEN. LAWS ch. 266, 16 (2008) ( Whoever, in the night time, breaks and enters a building, ship, vessel or vehicle, with intent to commit a felony, or who attempts to or does break, burn, blow up or otherwise injures or destroys a safe, vault or other depository of money, bonds or other valuables in any building, vehicle or place, with intent to commit a larceny or felony, whether he succeeds or fails in the perpetration of such larceny or felony, shall be punished by imprisonment in the state prison for not more than twenty years or in a jail or house of correction for not more than two and one-half years. ). 50. 544 U.S. 13 (2005). Here, Reginald Shepard pled guilty to possession of a firearm by a convicted felon and at sentencing the prosecution argued that the court should apply the ACCA. Id. at 15. Shepard had eleven prior convictions for breaking and entering and the prosecution argued that at least five of them qualified under the generic burglary definition in Taylor. Id. at 16 18. The problem was that because the statute was so broad, and Shepard s plea colloquies merely repeated the language of the statute, it was not clear whether the offenses took place in a vehicle or a structure. Id. at 21 26. The prosecution asked the court to accept facts taken from the police reports and charging documents as evidence that Shepard s prior convictions fell within the ACCA s predicate offenses. Id. The district court reviewed the documents but did not apply the ACCA. Id. The Court of Appeals vacated and remanded with instructions to apply the sentence enhancement. Id. In a fractured opinion, the Supreme Court reversed and remanded. Id. at 26.

828 RUTGERS LAW JOURNAL [Vol. 42:819 the defendant, or to some comparable judicial record of this information. 51 A majority of the Court determined that Taylor applied equally to guilty pleas and verdicts. 52 Therefore, the Court continued the reasoning behind the Taylor rule: finding a pragmatic middle ground between a fact-sensitive trial within a trial and a complete categorical approach dependent on how the states write their statutes. 53 The Court determined that allowing sentencing courts to inquire beyond what Taylor permitted, that is, the indictment or information and jury instructions, 54 would be inconsistent with the categorical approach. 55 Therefore, only documents approaching the certainty of the record of conviction can be permitted. 56 A plurality of the Court went on to reason that [d]evelopments in the law since Taylor supported the result. 57 Justice Souter, joined by Justices Ginsburg, Stevens, and Scalia, stated that a wider inquiry could be unconstitutional. 58 The plurality also noted that because the documents that the prosecution wished to use against Shepard did not resolve the factual ambiguity in the statute to wit, whether Shepard burglarized a structure, vessel, or vehicle beyond a reasonable doubt, they may not be used to enhance his sentence. 59 Justice O Connor, joined by Justices Kennedy and Breyer, vigorously dissented from the Court s opinion. First, they noted there was nothing unfair... about recognizing and acting upon plain and uncontradicted 51. Id. 52. Id. at 19. The Court noted that the language of the ACCA does not differentiate between convictions following pleas or following verdicts. Id. 53. Taylor, 495 U.S. at 588 89. The Taylor Court found that Congress intended that the enhancement provision be triggered by crimes having certain specified elements, not by crimes that happened to be labeled robbery or burglary by the laws of the State of conviction. Id. 54. Id. at 602. 55. Shepard, 544 U.S. at 19, 23. 56. Id. at 23. 57. Id. at 24. 58. Id. In Apprendi v. New Jersey, the Court held that aside from the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. 530 U.S. 466, 490 (2000). 59. Shepard, 544 U.S. at 25 ( [T]he Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury s finding of any disputed fact essential to increase the ceiling of a potential sentence. ). Justice Thomas, writing for himself, stated that, in light of the Court s Sixth and Fourteenth Amendment jurisprudence, the limited factfinding that Taylor s rule permits is unconstitutional. Id. at 28 (Thomas, J., concurring).

2011] FLEEING FROM THE POLICE 829 evidence. 60 They argued the majority s reading of Taylor is disserved by severely limiting the record that the sentencing judge may rely on, since, more than ever, the ACCA will be applied based on state statutory definitions as well as how well the state courts record colloquies between the judge and defendant. 61 Second, they argued the plurality s discussion of constitutional issues is misplaced because the Sixth and Fourteenth Amendments should not bear on determinations of past crimes. 62 B. Applying the Categorical Approach to the Residual Provision The categorical approach first applied in Taylor and refined in Shepard proved problematic when courts attempted to apply it to the residual provision of the ACCA. 63 The Court first weighed in on the meaning of this clause in 2007 in the context of crimes of intent in James v. United States. 64 The James Court held that the ACCA did not require that a crime be completed in order to qualify as a predicate offense, 65 and therefore a conviction for attempted burglary was a violent felony under the ACCA. 66 Noting that the main risk of burglary comes from the possibility of a face- 60. Id. at 36 (O Connor, J., dissenting). The dissenters argued the police reports and complaint affidavits were not only consistent with the guilty plea, but were never disputed by Shepard either during the original sentencing hearing or at the later possession of a weapon by a felon sentencing. Id. 61. Id. at 36 37 ( [W]ith respect to this most critical issue, the majority s rule is not consistent with Taylor at all. ). 62. Id. at 38. The dissenters reasoned the Court should respect Congress long tradition of treating recidivism as a sentencing factor determined by the judge, rather than as a substantive offense element determined by the jury. Id. (quoting Almendarez-Torres v. United States, 523 U.S. 224, 243 (1998)). This case, in particular, does not raise a constitutionality issue because Shepard s convictions were themselves established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees. Id. (quoting Jones v. United States, 526 U.S. 227, 249 (1999)). Furthermore, the ambiguity involved in Shepard s conduct, that is, whether he entered a building, was extremely narrow, never seriously challenged, and easily resolved through the use of reliable documentation. Id. 63. The residual provision of the ACCA defines as a violent felony conduct that otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. 924(e)(2)(B)(ii). 64. 550 U.S. 192, 195 (2007). In this case, the prosecution argued that Alphonso James prior conviction for attempted burglary of a dwelling qualified as a violent felony under the ACCA. Id. at 196. The district court held that attempted burglary did not fit within the residual provision of the ACCA and the Eleventh Circuit affirmed. Id. at 195. 65. Id. at 200. The Court determined that neither the language of the statute nor the legislative history demonstrated that Congress intended the ACCA s residual clause apply solely to completed offenses. Id. at 200 01. 66. Id. at 209.

830 RUTGERS LAW JOURNAL [Vol. 42:819 to-face confrontation between the burglar and a third party, 67 the Court concluded that that potential also applies to attempted burglary. 68 Because the categorical approach does not require that the potential risk be present in all cases, but only in the ordinary case, the Court concluded that this potential risk of encountering a burglar who is attempting to enter a building exists to the extent necessary to trigger the ACCA s residual clause. 69 In his dissent, Justice Scalia, joined by Justices Stevens and Ginsburg, criticized the Court s approach by pointing out that it fails to provide concrete guidance for lower federal courts attempting to apply the ACCA. 70 The dissent argued that the majority s approach is merely an ad hoc determination whether this crime presents a risk similar to the enumerated offenses: burglary, extortion, arson, and explosives. 71 Concluding that burglary posed the least potential risk of the enumerated offenses, the dissent stated that, under the majority s rule, this would be the baseline to compare to all non-enumerated offenses. 72 Therefore, every prior offense would have to be compared to burglary to determine whether it poses a similar risk. The dissent went on to point out that the Court does not provide an answer on how to make that comparison. 73 Instead, Justice Scalia predicted that it would take decades, and dozens of grants of certiorari, to allocate all the Nation s crimes to one or the other side of this entirely reasonable and entirely indeterminate line established by the ACCA. 74 67. Id. at 203. The Court stated that the risk comes, not from the completed crime, but from the possibility that an innocent person, such as a homeowner, a police officer, or a bystander, might interrupt the crime as it is in progress. Id. 68. Id. at 203. Under Florida law, as interpreted by the state s highest court, attempted burglary requires some overt act directed toward committing the crime of burglary. Jones v. State, 608 So. 2d 797, 798 (Fla. 1992) (citing Fla. Stat. Ann. 777.04(1) (West 1989)). 69. James, 550 U.S. at 207 08. 70. Id. at 215 (Scalia, J., dissenting) ( [The majority] 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. ). 71. Id. 72. Id. at 219. Justice Scalia rejected the expansive definition of extortion provided by the common law and the Model Penal Code because they include conduct having an inherently nonviolent nature. Id. at 222. Instead, reading the provision in its entirety, he concluded that extortion for ACCA purposes refers to the obtaining of something of value from another, with his consent, induced by the wrongful use or threatened use of force against the person or property of another. Id. at 224. Therefore, all conduct conforming to generic extortion by definition includes a threat to persons or property, whereas generic burglary only involves a potential conflict between the burglar and a third party. Id. at 225. 73. Id. at 228. 74. Id. at 216.

2011] FLEEING FROM THE POLICE 831 Merely a year later, the Court once again granted certiorari to consider the breadth of the residual clause of the ACCA. This time, in Begay v. United States, 75 the Court had to put the crime of driving under the influence of alcohol to one side or the other of the indeterminate line of the categorical approach. The Begay Court held that driving under the influence was not a violent and aggressive crime[] committed intentionally and therefore was too unlike the enumerated offenses to be encompassed by the ACCA s residual clause. 76 The Court, attempting to give every word in the statute meaning, read the residual clause to include only crimes roughly similar, in kind as well as in degree of risk posed to the enumerated offenses. 77 The Court found support for this conclusion in both the legislative history and the Act s basic purpose. First, Congress did not enact the bill proposed by Senator Specter and Representative Wyden, which would have covered every offense that involved a substantial risk of the use of physical force against the person or property of another. 78 Second, relying on the Act s basic purpose of keeping firearms out of the hands of particular groups violent criminals and drug traffickers the Court read the statute to apply solely to those whose criminal history evinces an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger. 79 75. 553 U.S. 137 (2008). The district court found that Larry Begay s three driving under the influence convictions were violent under the ACCA because those convictions involve[d] conduct that present[ed] a serious potential risk of physical injury to another. United States v. Begay, 377 F. Supp. 2d 1141, 1145 (D.N.M. 2005). The Court of Appeals for the Tenth Circuit affirmed. United States v. Begay, 470 F.3d 964, 977 (10th Cir. 2006). The Supreme Court, in an opinion written by Justice Breyer, reversed and remanded. Begay, 553 U.S. 137. 76. Begay, 553 U.S. at 148. 77. Id. at 143. The Court rejected the argument that the enumerated offenses are present solely to provide a quantities degree of risk to compare other crimes since, if that was Congress purpose, they would have included offenses, which have an easily illustrated degree of risk. Id.; see also, James, 550 U.S. at 229 (Scalia, J., dissenting) ( Congress provided examples [that]... have little in common, most especially with respect to the level of risk of physical injury they pose. ). 78. Taylor, 495 U.S. at 583 (quoting S. 2312, supra note 34; H.R. 4639, supra note 34). 79. Begay, 553 U.S. at 146. The Court noted that various crimes, such as tampering with consumer products, could be dangerous but could hardly be said to make the offender a career criminal. Id. The important distinction is that the enumerated offenses are associated with a likelihood of future violent, aggressive, and purposeful armed career criminal behavior. Id. at 148. In his concurrence, Justice Scalia noted that this approach, while excluding a significant number of crimes from the residual clause, does not establish a comprehensive framework as

832 RUTGERS LAW JOURNAL [Vol. 42:819 In the dissent, Justice Alito, joined by Justices Souter and Thomas, argued that the Court s opinion creates the requirements of purposeful, violent, and aggressive conduct out of whole cloth. 80 Reading the statute on its face, offenses covered by the residual clause must be similar to the enumerated clause in one respect: that they involve conduct that presents a serious potential risk of personal injury to another. 81 Furthermore, the terms purposeful, violent, and aggressive are troublesome terms that are difficult to apply. 82 As Justice Alito predicted in Begay, the requirements of purposeful, violent, and aggressive conduct proved to be difficult for the lower courts to apply. 83 Sure enough, a year after handing down the Begay decision, the Court once again took up the ACCA. In Chambers v. United States, 84 the Court was asked to consider whether failure to report for weekend confinement was a violent felony under the residual clause of the ACCA. 85 The Court found that the relevant statute actually consisted of two separate crimes: failing to report and escaping from custody. 86 Examining solely the crime of failing to report, the Court concluded that that offense was unlike the enumerated offenses of the ACCA in that it involved inaction, much as provides a Scrabble-like device to resolve the case at bar. Id. at 150. (Scalia, J., concurring). 80. See id. at 159. (Alito, J., dissenting) ( Requiring that an offense must also be purposeful, violent, or aggressive amounts to adding new elements to the statute. ). 81. 18 U.S.C. 924. 82. Justice Alito argued that purposeful is problematic to the Court s holding because individuals convicted of driving under the influence purposefully consumed alcohol and purposefully operated their vehicles; violent is redundant since the proceeding clause contains offenses that have as an element the use or threatened use of violence; and aggressive is vague because driving under the influence can be aggressive. Begay, 553 U.S. at 159 60 (Alito, J., dissenting). 83. See id. 84. 555 U.S. 122 (2009). The district court treated the offense as a form of what the relevant Illinois statute calls escape from [a] penal institution, and held that the crime qualified as a violent felony under ACCA. Id. at 125 (quoting 720 ILL. COMP. STAT. 5/31-6(a) (West 2008)). The Court of Appeals for the Seventh Circuit affirmed. United States v. Chambers, 473 F.3d 724 (7th Cir. 2007). The Supreme Court, in an opinion written by Justice Breyer, reversed. Chambers, 555 U.S. 122. 85. Chambers, 555 U.S. at 124 25. 86. See id. at 126 27. The statute separately describes those behaviors as (1) escape from a penal institution, (2) escape from the custody of an employee of a penal institution, (3) failing to report to a penal institution, (4) failing to report for periodic imprisonment, (5) failing to return from furlough, (6) failing to return from work and day release, and (7) failing to abide by the terms of home confinement. Id. at 126 (citing 720 ILL. COMP. STAT. 5/31-6(a) (West 2008)).

2011] FLEEING FROM THE POLICE 833 rather than action. 87 However, not wanting to rest the case on this conceptual distinction, the Court, relying on a report produced by the United States Sentencing Commission, 88 went on to ultimately find that a person convicted of failing to report is not more likely than others to attack, or physically to resist, an apprehender, and therefore the crime did not fall within the ACCA. 89 Justice Thomas, joined by Justice Alito, again dissented, finding the majority s opinion to be inconsistent with the statutory text of the ACCA. 90 IV. THE STATE OF THE LAW AFTER BEGAY AND CHAMBERS: THE CIRCUIT COURTS APPLY THE ACCA TO EVADING POLICE After Begay and Chambers, the Fifth and Eleventh Circuits were forced to apply the ACCA to the crime of fleeing from police officers in a vehicle. Clearly, this offense did not fit within the enumerated offenses or as a crime that involves the use, attempted use, or threatened use of physical force against the person of another. 91 Therefore, if the ACCA was to apply, fleeing would have to fall within the residual clause. The question, then, was how to apply the framework laid out in Begay and Chambers that is, whether fleeing from police is roughly similar, in kind as well as in degree of risk posed, to the enumerated offenses. 92 87. Id. at 128 ( Conceptually speaking, the crime amounts to a form of inaction, a far cry from the purposeful, violent, and aggressive conduct potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion. ) (citation and quotation omitted). The Court mused that [w]hile an offender who fails to report must of course be doing something at the relevant time, there is no reason to believe that the something poses a serious potential risk of physical injury. Id. Interestingly, the Court used this observation to conclude that an individual who fails to report would seem unlikely, not likely, to call attention to his whereabouts by simultaneously engaging in additional violent and unlawful conduct. Id. However, it is not hard to imagine that an individual on the lamb would become involved in violent behavior in order to keep his whereabouts unknown. 88. See id. at 129. The Report concluded that out of 414 cases of Escape, Instigating or Assisting Escape, 42 involved failure to report for incarceration and 118 involved failure to report from temporary release; of those 160 cases, none resulted in violence and only five involved a dangerous weapon. Id. (citing 1 U.S. SENT G COMM N, GUIDELINES MANUAL 2P1.1 (NOV. 2008)). 89. Id. 90. Id. at 131 32 (Alito, J., dissenting). 91. See, e.g., United States v. Harrison, 558 F.3d 1280, 1284 (11th Cir. 2009) (noting that both the prosecution and defendant agreed that the fleeing in a vehicle did not fall within 924(e)(2)(B)(i)). 92. Begay, 553 U.S. at 143.

834 RUTGERS LAW JOURNAL [Vol. 42:819 A. Whether Fleeing From Police is Similar in Kind to the Enumerated Offenses In United States v. Harrison, 93 the prior offense at issue was a Florida statute that prohibited drivers from willfully fleeing or eluding law enforcement officers who have activated their sirens and lights. Florida law differentiated between: (1) willful failure to stop a vehicle or willful fleeing after being ordered to stop by an officer; (2) willful fleeing after the police vehicle activated its siren and lights; and (3) willful fleeing after the police vehicle activated its siren and lights with high speed or a a wanton disregard for the safety of persons or property. 94 Harrison pled guilty to violating the second offense. 95 This was important because, under the categorical approach, the court could only consider the crime as it is ordinarily committed. First, the court had no trouble concluding that the willful decision not to follow a police officer s signal is purposeful. 96 The court then looked to whether the ordinary offender would pose a threat to pedestrians, other drivers, or the officer. 97 While the statute did necessarily involve a conflict with law enforcement, the court concluded that because the statute did not require high speed or reckless driving the offender was not 93. 558 F.3d 1280. 94. The relevant statute, entitled Fleeing or attempting to elude a law enforcement officer; aggravated fleeing and eluding, provides: It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order or, having stopped in knowing compliance with such order, willfully to flee in an attempt to elude the officer, and a person who violates this subsection commits a felony of the third degree.... Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated commits a felony of the third degree.... Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle with siren and lights activated, and during the course of the fleeing or attempted eluding: (a) [d]rives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property commits a felony of the second degree.... FLA. STAT. 316.1935 (1999) (amended 2004). 95. Harrison, 558 F.3d at 1290. 96. Id. at 1295. 97. Id. at 1294.

2011] FLEEING FROM THE POLICE 835 likely to become violent and resist arrest. 98 Thus, the court concluded that the conduct was not sufficiently aggressive and violent enough to be similar in kind to the enumerated offenses. 99 In United States v. Harrimon, 100 the statute at issue prohibited drivers from intentionally fleeing from a law enforcement officer attempting to lawfully detain them. 101 The elements of the offense were defined as: (1) a person, (2) intentionally flees, (3) from a peace officer, (4) with knowledge he or she is a peace officer, (5) the peace officer is attempting to arrest or detain the person, (6) the attempted arrest or detention is lawful, and (7) the person uses a vehicle while... in flight. 102 As in Harrison, the statute did have as elements high speed or reckless driving. 103 However, the court respectfully disagree[d] with the Eleventh Circuit s analysis. 104 Clearly, both courts determined that the offense was purposeful because it required intentional conduct and by definition involves a conflict with law 98. Id. 99. Id. at 1295. The Eleventh Circuit was later faced with the question whether a violation of Florida Statutes 316.1935(3)(a), which prohibits fleeing in a vehicle at high speed or any manner which demonstrates a wanton disregard for the safety of persons or property, was a crime of violence under the United States Sentencing Guidelines (USSG). See United States v. Harris, 586 F.3d 1283, 1284 (11th Cir. 2009). The USSG defines crime of violence in nearly identical language to violent felony under the ACCA. See U.S. SENTENCING GUIDELINES MANUAL 4B1.2 (2009) (a crime of violence includes a crime punishable by a year imprisonment that, inter alia, is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another ). The Harris court applied the Begay-Chambers framework and held that 316.1935(2)(a) was a crime of violence. 586 F.3d at 1289. The court distinguished the case at bar from Harrison by focusing on the elements of high speed and wanton disregard, finding that those elements added the requisite level of aggressiveness and violence found lacking in 316.1935(2). The court concluded that [f]leeing at high speed or with wanton disregard for safety amounts to holding a finger on the trigger of a deadly weapon, without care for whom the bullet may strike. Id. 100. 568 F.3d 531 (5th Cir. 2009). 101. The relevant statute, entitled Evading Arrest or Detention, provides A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him. An offense under this section is a Class B misdemeanor, except that the offense is: a state jail felony if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section[.] TEX. PENAL CODE ANN. 38.04 (Vernon 2001) (amended 2009). 102. 568 F.3d at 533 (quoting Powell v. State, 206 S.W.3d 142, 143 (Tex. App. 2006)). 103. Note that Texas does not have a separate statute for pursuits at high speed or with reckless driving. 104. Harrimon, 568 F.3d at 535.

836 RUTGERS LAW JOURNAL [Vol. 42:819 enforcement personnel. 105 The court s analysis differs on the issue of whether it is also violent and aggressive. The Harrimon court found that the offense was aggressive because the police officer would have to use some force to overcome a motorist who refuses to stop. 106 Furthermore, fleeing by vehicle will typically lead to a confrontation with the officer being disobeyed, a confrontation fraught with risk of violence. 107 B. Whether Fleeing From Police is Similar in Degree of Risk Posed to the Enumerated Offenses The Harrison court, picking up on language in Justice Alito s concurrence in Chambers, noted that statistics were useful in determining degree of potential risk. 108 In this case, as was to be expected, statistics were not presented to the court. 109 Without empirical data, and because it had already determined that the statute was too dissimilar in kind from the enumerated offenses, the court stated that it would be too much of a leap to conclude that one who [willfully flees] is the kind of person likely to commit a crime of violence. 110 Likewise, the Harrimon court noted that statistical data was important to a determination of whether an offense was similar in degree of risk to an enumerated offense. 111 The court relied on a study funded by the Justice 105. See also United States v. Spells, 537 F.3d 743, 752 (7th Cir. 2008) ( Taking flight calls the officer to give chase, and aside from any accompanying risk to pedestrians and other motorists, such flight dares the officer to needlessly endanger himself in pursuit. ). 106. Harrimon, 568 F.3d at 535; accord United States v. West, 550 F.3d 952, 970 (10th Cir. 2008). 107. Harrimon, 568 F.3d at 535 (quoting West, 550 F.3d at 970); cf. James v. United States, 550 U.S. 192, 203 (2007) ( The main risk of burglary arises not from the simple physical act of wrongfully entering onto another s property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party.... ). 108. See Harrison, 558 F.3d at 1299 ( Whatever we may think about injecting statistics into statutory construction, we cannot ignore that the Supreme Court has relied on statistical evidence each time it has revisited the scope of the residual clause in the last three years. ); see also Chambers v. United States, 555 U.S. 122, 134 (2009) (Alito, J., concurring) ( Today s decision, for example, turns on little more than a statistical analysis of a research report prepared by the United States Sentencing Commission. ). 109. See Harrison, 558 F.3d at 1295 ( [T]his type of case would benefit from empirical evidence.... A useful study would look at the number of physical injuries associated with such willful fleeing crimes as compared to the total number of such willful fleeing crimes. ). 110. Id. at 1296. 111. See Harrimon, 568 F.3d at 536 ( [U]nlike the Supreme Court in Chambers, we do not have the benefit of a report from the United States Sentencing Commission.... ).

2011] FLEEING FROM THE POLICE 837 Department, which demonstrated that there were roughly 0.04 injuries to others per police pursuit. 112 Interestingly, instead of comparing this statistic to burglary, which Justice Scalia had determined to pose the least risk of the enumerated offenses, 113 the court compared the statistic to arson, which it found presented only 0.009 injuries per arson. 114 Therefore, having already determined the offense to be similar in kind, the Harrimon court determined that the offense was also similar in degree of risk to arson, and therefore fell within the ACCA. 115 V. ANOTHER WAY: A JUDICIAL APPROACH TO CONSISTENCY IN THE ACCA The split among the circuits over whether a motorist fleeing from police is a violent felony under the ACCA is just one among a number of such disagreements. 116 Thus, it is clear that the framework the Court provided in Begay and Chambers is not sufficient to assist the lower federal courts in classifying cases with any consistency. 117 Justice Alito lamented that the ACCA s residual clause is nearly impossible to apply consistently and the only way to fix this problem is for Congress to formulate a specific list of expressly defined crimes that are deemed to be worthy of the ACCA s sentencing enhancement. 118 However, while the courts continue to struggle 112. The study collected police pursuit data from fifty-six law enforcement agencies in thirty states and reported that 314 injuries (including fatal injuries) to police and bystanders resulted from 7,737 reported pursuits. Id. at 537 (citing CYNTHIA LUM & GEORGE FACHNER, INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE, POLICE PURSUITS IN AN AGE OF INNOVATION AND REFORM 57 (2008)). 113. See supra note 68 and accompanying text. 114. Harrimon, 568 F.3d at 537 (citing U.S. Fire Admin., Arson in the United States, TOPICAL FIRE RES. SERIES, Jan. 2001, at 1, available at http://www.usfa.dhs.gov/downloads /pdf/tfrs/v1i8-508.pdf; U.S. Fire Admin., Arson for Profit: National Arson Awareness Week Media Kit, May 2009, at 2, available at http://www.usfa.dhs.gov/downloads/pdf/arson /aaw09_media_ kit.pdf). 115. Id. 116. See, e.g., Chambers v. United States, 555 U.S. 122, 134 n.2 (Alito, J., concurring) (listing examples of circuit splits over whether it is a violent felony to commit crimes such as statutory rape, retaliating against a government officer, carrying a concealed weapon, and unauthorized use of a motor vehicle). 117. See James v. United States, 550 U.S. 192, 216 (2007) (Scalia, J., dissenting) ( Imprecision and indeterminacy are particularly inappropriate in the application of a criminal statute. Years of prison hinge on the scope of ACCA's residual provision, yet its boundaries are ill defined. If we are not going to deny effect to this statute as being impermissibly vague, we have the responsibility to derive from the text rules of application that will provide notice of what is covered and prevent arbitrary or discriminatory sentencing. ) (citation omitted). 118. Chambers, 555 U.S. at 134 (Alito, J., concurring).

838 RUTGERS LAW JOURNAL [Vol. 42:819 to apply the ACCA, Congress has proposed no such action. 119 Therefore, instead of having to decide each case one-by-one, an impossible task to be sure, the courts should adopt a judicial framework for identifying offenses covered by the ACCA. Because decisions of statutory construction carry great weight, the Court will not be able to move too far away from its precedents, even though there is no doubt that the construction of the residual clause of the ACCA is in great disarray. 120 Therefore, while hewing close to the Court s ACCA jurisprudence, there is still room to break away and create a more consistent reading. A. Prior Supreme Court ACCA Jurisprudence Should Be Maintined First, the Court will need to continue to interpret the ACCA to limit the amount of evidence that may be presented to the sentencing court to prove that the defendant engaged in conduct falling under the ACCA. The concerns of the Taylor Court are still persuasive. It would be very difficult for sentencing courts to attempt trials-within-trials to determine what it was, exactly, that the defendant did and whether that conduct was covered by the ACCA. 121 It is also clear that Congress never intended for courts to engage in that sort of review of the record. 122 Furthermore, in light of the Court s more recent decisions regarding the Sixth and Fourteenth Amendments, any judicial factfinding beyond simply the fact of conviction, the indictment, and the jury instructions may be unconstitutional. 123 In addition, the courts would still need to break statutes into different crimes when the Shepard evidence would allow it. 124 Second, the Court will need to ensure that the offenses within the residual clause must be similar in kind and similar in degree of potential risk. 119. See, e.g., Johnson v. United States, 130 S. Ct. 1265 (2010) (holding that felony battery under Florida law is not a predicate offense for ACCA purposes). 120. See Patterson v. McLean Credit Union, 491 U.S. 164, 172 73 (1989) ( Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done. ). 121. See Taylor v. United States, 495 U.S. 575, 601 (1990) ( [T]he practical difficulties and potential unfairness of a factual approach are daunting. ). 122. See id. at 600 ( [Congress never] suggested that a particular crime might sometimes count towards enhancement and sometimes not, depending on the facts of the case. ). 123. See supra notes 50 54 and accompanying text. 124. See, e.g., Chambers v. United States, 555 U.S. 122, 126 (2009) (breaking down Illinois escape from a penal institution into separate crimes, including failure to report to a penal institution and escape from a penal institution).