bad day for music fans. But it's also a bad day for those unfortunate enough to follow the unfolding soap opera that is ACCA jurisprudence. Perhaps you've read about Sykes, Begay, and the categorical approach (both modified and unmodified) in these pages before? (Just scroll down if you have not.) Well, today's opinion in United States v. Doyle finds Sykes emerging at the top of this nasty dispute, and in a particularly painful way. Here's the synopsis, for those whose stomachs are too weak for the salacious details....
Mr. Doyle was an armed career criminal in part because of a prior conviction for Tennessee Class-E evading arrest. In United States v. Rogers, the Sixth Circuit upheld another defendant's ACCA designation decided that Tennessee Class E evading arrest is a "violent felony" under the ACCA. The Supreme Court, however, singled the Rogers case out for reconsideration after it published the now notorious Sykes opinion, directing the Sixth Circuit to reconsider the Rogers opinion in light of Sykes. The Rogers panel was presumably considering this question when the Doyle panel issued its opinion.
The Doyle opinion had no trouble concluding that the reason the Supreme Court wanted the Rogers panel to reconsider the case in light of Sykes is that the Supreme Court must have thought Rogers was correctly decided, but for the wrong reason. The Tennessee law in question is notable because it is explicit that a felony can only be "Class E" if it does not "create a risk of death or injury to innocent bystanders or other third parties." In other words, the fact that the Tennessee legislature wanted to distinguish between those flight attempts that create a risk of injury and those that don't" sure suggests that the lesser crime might get a pass under the ACCA. The Sixth Circuit disagreed, focusing on the fact that the residual clause only requires a serious "potential" risk to "another," and any flight creates a risk to a pursuing police officer.
The opinion contains a long discussion of Sykes as it relates to lesser-included offenses. There's also a thoughtful dissent by Judge White. But for now it suffices to tell you that your clients who have prior convictions for evading arrest are a lot more vulnerable. Wish I had better news.