Tuesday, January 13, 2009

Failure-To-Report is no Violent Felony

Today the U.S. Supreme Court concluded that "failure to present oneself for detention on a specified occasion" is not a violent felony and therefore cannot serve as a predicate offense under the Armed Career Criminal Act. Chambers v. United States, No. 06-11206 (Jan. 13, 2009).

The conduct in question-- failing to report to serve a sentence, or failing to return to custody-– frequently is categorized as an "escape" under state and federal law. Most federal circuits have concluded that escapes of any nature categorically qualify as a "crime of violence" or "violent felony."

The Supreme Court has now distinguished ‘failures to report/return’ from ‘actual escapes from custody,’ noting that "[t]he behavior that likely underlies a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody." Id. at 4.

Most importantly, the Court cited its recent decision in Begay v. United States, 553 U.S. ___ (2008), and noted that the action/inaction of failing to report is "far cry" from the purposeful, violent and aggressive conduct associated with the offenses specifically named in the ACCA as violent felonies (use of explosives against property, arson, burglary, extortion).

Given the developing line of Supreme Court cases which continue to narrow the definition of "violent felony" and "crime of violence," practitioners must carefully examine their clients’ prior convictions. If a prior offense is not specifically enumerated as a "violent felony" in the ACCA or a "crime of violence" under the U.S.S.G. 4B1.2, the career offender guideline, then counsel must analyze whether the prior offense can used as a predicate offense. In many situations, offenses that met the previously expansive definition of "violent felony" and "crime of violence" cannot be categorized as such in the post-Begay/Chambers world.