Facts: In September 2004, New Mexico police officers received a report that Larry Begay, the petitioner here, had threatened his sister and aunt with a rifle. The police arrested him. Begay subsequently conceded he was a felon and pleaded guilty to a federal charge of unlawful possession of a firearm in violation of § 922(g)(1). Begay’s presentence report said that he had been convicted a dozen times for DUI, which under New Mexico’s law, becomes a felony (punishable by a prison term of more than one year) the fourth (or subsequent) time an individual commits it. (Supp.2007).
The sentencing judge consequently found that Begay had at least three prior convictions for a crime “punishable by imprisonment for a term exceeding one year.” 377 F.Supp.2d 1141, 1143 (NM 2005). The judge also concluded that Begay’s “three felony DUI convictions involve conduct that presents a serious potential risk of physical injury to another.” Id., at 1145. The judge consequently concluded that Begay had three or more prior convictions for a “violent felony” and should receive a sentence that reflected a mandatory minimum prison term of 15 years. Ibid.
Procedural History: After petitioner Begay pleaded guilty to felony possession of a firearm, his presentence report revealed he had 12 New Mexico convictions for driving under the influence of alcohol (DUI), which state law makes a felony (punishable by a prison term of more than one year) the fourth (or subsequent) time an individual commits it. Based on these convictions, the sentencing judge concluded that Begay had three or more “violent felony” convictions and, therefore, sentenced him to an enhanced 15–year sentence. The Tenth Circuit rejected Begay’s claim that DUI is not a “violent felony” under the Act. appealed. The Court of Appeals panel by a vote of 2 to 1 rejected that claim. 470 F.3d 964 (C.A.10 2006). Begay sought certiorari.
Issue: Does driving while intoxicated qualify as a violent felony for purposes of the federal career criminal law?
Holding: No. reversed and remanded
Reasoning: In determining whether this crime is a violent felony, the Court considered the offense generically. The Court examined it in terms of how the law defined the offense and not in terms of how an individual offender might have committed it on a particular occasion. The Court said that DUI does not fall within the scope of the Act’s clause (i) “violent felony” definition. DUI, as New Mexico defines it, nowhere “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).
The Court also assumed that the lower courts were correct in concluding that DUI involves conduct that “presents a serious potential risk of physical injury to another.” § 924(e)(2)(B)(ii). But even so, the Court found that DUI falls outside the scope of clause (ii), and it is simply too unlike the provision’s listed examples for the Court to believe that Congress intended the provision to cover it. In the Courts opinion In our view, the provision’s listed examples— burglary, arson, extortion, or crimes involving the use of explosives—illustrate the kinds of crimes that fall within the statute’s scope.
Their presence indicated that the statute covers only similar crimes, rather than every crime that “presents a serious potential risk of physical injury to another.” § 924(e)(2)(B)(ii). If Congress meant the statute to be all encompassing, it is hard to see why it would have included the examples at all. Without them, clause (ii) would cover all crimes that present a “serious potential risk of physical injury.” Ibid. Additionally, if Congress meant clause (ii) to include all risky crimes, why would it have included clause (i)? A crime which has as an element the “use, attempted use, or threatened use of physical force” against the person (as clause (i) specifies) is likely to create “a serious potential risk of physical injury” and would seem to fall within the scope of clause (ii). The Court concluded that the examples in clause (ii) limited the scope of the clause to crimes that are similar to the examples themselves.
The Court could not agree with the Government that the word “otherwise” was sufficient to demonstrate that the examples did not limit the scope of the clause because the word “otherwise” can refer to a crime that is similar to the listed examples in some respects but different in others. The Court said DUI differed from the example crimes—burglary, arson, extortion, and crimes involving the use of explosives—in at least one respect. The listed crimes all typically involved purposeful, “violent,” and “aggressive” conduct. The Court concluded that New Mexico’s crime of “driving under the influence” falls outside the scope of the Armed Career Criminal Act’s clause (ii) “violent felony” definition.
Evaluation: I believe Justice Breyer is wrong and that anyone with as many convictions for driving under the influence is career criminal and a danger to society. Not only should that individual not be allowed to carry a fire arm he should be locked up forever. I wonder how Justice Breyer would change his opinion is Mr. Begay killed a family member while drunk?