In Sykes v. United States, 131 S.Ct. 2267, 2284 (2011), Justice Scalia in dissent, discussing what he refers to as "the Delphic residual clause," says, "Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. We should admit that the ACCA’s residual provision is a drafting failure and declare it void for vagueness." Derrick Johnson would agree, but, unfortunately, the majority didn’t agree with Justice Scalia, and the Sixth Circuit didn't agree with Derrick Johnson.
The issue in United States v. Johnson, No. 10-5691/5778 (6th Cir. 2012), was whether Johnson’s Missouri conviction for third-degree assault could be a predicate for the Armed Career Criminal enhancement. Third-degree assault is a misdemeanor in Missouri, but because Johnson had two prior convictions for the same offense, his third conviction became a Class D felony.
The government conceded that the offense was not a "violent felony" under the categorical approach. This, then, allowed the Court to review the charging documents. Although the statute involved, Mo.Ann.Stat. § 565.070.1(1)-(6), could be violated by both intentional and reckless conduct, the Court of Appeals finds that since Johnson was charged with one of the "intentional" subsections, and not one of those charging reckless conduct, the Court could go on to consider whether or not it was a "violent felony." Enter Sykes.
In Begay v. U.S., 553 U.S. 137 (2008), the Supreme Court had narrowed the category of offenses to which the ACCA enhancement would apply by requiring that a predicate offense being examined under the residual clause be "similar in kind" to those enumerated offenses by involving "purposeful, violent, and aggressive conduct.". This would seem to be consistent with the nature of recidivist statutes that seek to punish offenders who are worse than others. In Sykes, however, the Court retreated from this narrowing by Begay to expand the class of individuals to whom the ACCA will apply by focusing, not on the nature of the offense, but on the level of risk of physical injury to others the offense presents. Employing such a test it would not be difficult for some courts to come to the opposite conclusion about DUI’s that Begay did. Applying Sykes, the Court of Appeals in Johnson had no problem finding that the enhanced Missouri misdemeanor conduct qualified for ACCA purposes as a "violent felony."
The Court also noted in Johnson, however, that part of the test for determining whether a prior conviction is an ACCA predicate is "whether the prior offense ‘conduct is such that it makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.’" (quoting Begay, 553 U.S. at 145.) While Begay does use that language, it does not appear to be in the context of elements of a test, but rather as an explanation of the "violent" and "aggressive" conduct involved in the enumerated offenses. Although that phrase (in slightly different form) is referenced in Sykes, it is not in the context of the test to be applied to the prior convictions and is not applied in the Court’s discussion of the "risks" test applied to Sykes’ prior conviction for evading arrest. This may be proof of Justice Scalia’s prediction in Sykes that the opinion’s "ad hoc judgment  will sow further confusion." (131 S.Ct. at 2284.)