Yesterday, the Sixth Circuit issued an unpublished opinion in U.S. v. Johnson, No. 06-6445, that will be of interest to attorneys looking to challenge prior offenses with a negligent or reckless mens rea as predicate offenses for the career offender enhancement, especially those in Tennessee. Mr. Johnson was challenging the use of his prior conviction for reckless endangerment under Tennessee law as a predicate, relying on the Supreme Court's decision in Begay requiring violent felonies to "involve purposeful, violent and agressive conduct." U.S. v. Begay, 128 S.Ct. 1581 at 1586 (2008). The Sixth in Johnson doesn't definitively decide the issue of whether reckless endangerment under Tennessee or any other law would qualify as a predicate offense for career offender or ACCA, instead relying upon a distinction in Tennessee law between misdemeanor reckless endangerment and felony reckless endangerment to determine that further factual findings were necessary by the district court. They then punt the case back to the district court because "the district court's determination in this case that defendant's reckless endangerment conviction constituted a 'crime of violence' should be revisited in light of the recent pronouncements in Begay." Johnson at *14.
While this case doesn't definitevly decide the issue, it is a clear indication that it is necessary for attorneys to be challenging any purported violent felony that only requires a negligent or reckless mens rea. Negligent homicide, vehicular homicide, reckless endangerment come to mind off the top of my head. Johnson represents to me that the Sixth Circuit is amenable to these kinds of challenges post-Begay. If you have any cases in the pipeline that have any of these types of predicates, it would be imperative to keep them alive while the Supremes and the Sixth work through the ramifications of Begay.