SIXTH CIRCUIT RESURRECTS BEGAY

The Sixth Circuit decided United States v. Kearney yesterday, a case which was mainly about whether or not a prior offense can be a violent felony if it is a misdemeanor that became a felony due to a recidivism enhancement. This issue had already been decided in favor of the government in the serious drug offense context under the ACCA, so the decision did not come as a big surprise. It was somewhat surprising to see that there was a dissent and that the Sixth Circuit took time to acknowledge the failings of the ACCA as a criminal statute.

The most interesting thing about this case however, was its take on Sykes v. United States. Sykes appeared to say that the purposeful, violent, and aggressive test was only to be used for negligent, reckless, and strict liability crimes. Yet the Sixth Circuit applied that test in Kearney despite the fact that it was dealing with an intentional crime.

So, do not stop making the purposeful violent and aggressive argument, though it was apparently slain by Sykes, Kearney has resurrected it in the Sixth Circuit.