Is Felony DWI a "Violent Felony"?

[DaJudge]

Begay v. United States (06-11543)

Oral argument: January 15, 2008
Appealed from: United States Court of Appeals, Tenth Circuit (http://www.ca10.uscourts.gov/) (December 12, 2006)
DWI, DRIVING WHILE INTOXICATED, DRUNK DRIVING,
FELON, FIREARM, GUN, RECIDIVIST, ARMED CAREER
CRIMINAL ACT, SENTENCE

Federal law prohibits convicted felons from possessing firearms, and the
Armed Career Criminal Act (?ACCA?) mandates increased prison sentences
for violators of this provision who have three or more prior ?violent felony?
convictions. Petitioner Larry Begay (?Begay?) had at least three prior
convictions for felony driving while intoxicated (?DWI?) when he pled guilty
to federal firearms possession charges. The trial court held that felony DWI
is a ?violent felony,? and therefore sentenced Begay to a lengthy prison
term under the ACCA. In deciding Begay?s appeal from this sentence, the
Court will consider whether the ACCA?s ?violent felony? definition
encompasses felony DWI. A decision favoring Begay would likely limit the
scope of the definition to felonies similar to those specifically listed in the
ACCA: burglary, arson, extortion, and crimes using explosives. On the other
hand, a decision in favor of the United States would likely extend the reach
of the definition to all dangerous felonies.

[Question(s) presented (http://www.law.cornell.edu/supct/cert/06-11543.html#qp)]
[Issue(s) (http://www.law.cornell.edu/supct/cert/06-11543.html#issue)]
[Facts (http://www.law.cornell.edu/supct/cert/06-11543.html#facts)]
[Discussion (http://www.law.cornell.edu/supct/cert/06-11543.html#discussion)]
[Analysis (http://www.law.cornell.edu/supct/cert/06-11543.html#analysis)]Question presented

Is felony driving while intoxicated a ?violent felony? for purposes of the
Armed Career Criminal Act?

Issue

Do the longer prison sentences specified by the Armed Career Criminal Act
apply to an individual convicted of being a felon in possession of a firearm
who has three prior convictions for felony driving while intoxicated?

Facts

Larry Begay (?Begay?) has struggled with alcoholism ?for the better part of
his life.? United States v. Begay (http://www.ca10.uscourts.gov/opinions/05/05-2253.pdf), 470 F.3d 964, 966 (10th Cir. 2006).
Since 1983, he has accumulated 22 arrests and 12 convictions for driving
while intoxicated (?DWI?). United States v. Begay (http://www.nmcourt.fed.us/Drs-Web/view-file?full-path-file-name=%2Fdata%2Fdrs%2Fdm%2Fdocuments%2Fcadd%2F2005%2F07%2F01%2F0000478817-0000000000-04cr02245.pdf), 377 F. Supp. 2d 1141,
1142 (D.N.M. 2005). New Mexico (http://www.newmexico.gov/) courts found Begay guilty of DWI once
in 1998 and twice in 2002. Brief for Petitioner (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Petitioner.pdf) at 4. Although DWI is
ordinarily a misdemeanor in New Mexico, the state treats an individual?s
fourth or subsequent DWI conviction as a felony (http://www.law.cornell.edu/wex/index.php/Felony). Begay (http://www.ca10.uscourts.gov/opinions/05/05-2253.pdf), 470 F.3d at 966.
Each of Begay?s three recent New Mexico DWI convictions was a fourth or
subsequent DWI conviction and thus a felony. Id. (http://www.ca10.uscourts.gov/opinions/05/05-2253.pdf)

In September 2004, after a night of drinking, Begay threatened his sister
with a rifle and demanded money. Begay (http://www.ca10.uscourts.gov/opinions/05/05-2253.pdf), 470 F.3d at 965; Begay (http://www.nmcourt.fed.us/Drs-Web/view-file?full-path-file-name=%2Fdata%2Fdrs%2Fdm%2Fdocuments%2Fcadd%2F2005%2F07%2F01%2F0000478817-0000000000-04cr02245.pdf), 377 F.
Supp. 2d at 1142. When she replied that she had none, Begay pulled the
trigger. Begay (http://www.ca10.uscourts.gov/opinions/05/05-2253.pdf), 470 F.3d at 965. The rifle was unloaded, and did not fire.
Id. (http://www.ca10.uscourts.gov/opinions/05/05-2253.pdf) Begay?s sister reported the incident to the Navajo Department of Law (http://navajodps.org/Page.asp?CustComKey=30996&CategoryKey=30997)
Enforcement, and responding officers found a rifle in Begay?s room. Id. (http://www.ca10.uscourts.gov/opinions/05/05-2253.pdf) On
January 24, 2005, in the United States District Court for the District of New (http://www.nmcourt.fed.us/web/index.htm)
Mexico, Begay pleaded guilty to an indictment charging him with violating 18 (http://www.law.cornell.edu/uscode/18/922.html)
U.S.C. ? 922(g)(1), a federal law prohibiting firearm possession by
convicted felons. See id. (http://www.ca10.uscourts.gov/opinions/05/05-2253.pdf) at 965?66. The Federal Sentencing Guidelines (http://www.ussc.gov/2007guid/TABCON07.html)
recommend a sentence of 41?51 months imprisonment for this offense; the
statutory maximum sentence is 120 months. Brief for Petitioner (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Petitioner.pdf) at 2.

However, if a felon guilty of firearms possession under 18 U.S.C. ? 922 (http://www.law.cornell.edu/uscode/18/922.html) has
three or more prior ?violent felony? convictions, the Armed Career Criminal
Act (?ACCA?), 18 U.S.C. ? 924(e)(1) (http://www.law.cornell.edu/uscode/18/924.html), requires a minimum sentence of 180
months imprisonment. Begay (http://www.ca10.uscourts.gov/opinions/05/05-2253.pdf), 470 F.3d at 966. At Begay?s sentencing, the
district court held that felony DWI in New Mexico is a violent felony. Id. (http://www.ca10.uscourts.gov/opinions/05/05-2253.pdf) The
district court therefore concluded that the ACCA required it to sentence
Begay to at least 180 months imprisonment. Id. (http://www.ca10.uscourts.gov/opinions/05/05-2253.pdf) Holding that the Federal
Sentencing Guidelines required a minimum sentence of 188 months
imprisonment under the circumstances, the district court then sentenced
Begay to 188 months. Id. (http://www.ca10.uscourts.gov/opinions/05/05-2253.pdf)

Begay appealed his sentence to the United States Court of Appeals for the (http://www.ca10.uscourts.gov/)
Tenth Circuit. Brief for Petitioner (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Petitioner.pdf) at 6. A divided three-judge panel
affirmed the district court?s conclusion that DWI in New Mexico is a ?violent
felony? for the purposes of the ACCA. See Begay (http://www.ca10.uscourts.gov/opinions/05/05-2253.pdf), 470 F.3d at 977.
However, finding that the district court erred in applying the Federal
Sentencing Guidelines, the Tenth Circuit remanded the case to the district
court for re-sentencing. Id. (http://www.ca10.uscourts.gov/opinions/05/05-2253.pdf) On February 21, 2007, the Tenth Circuit denied
Begay?s petition for rehearing en banc. Brief for Respondent (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Respondent.pdf) at 1.

On May 22, 2007, Begay petitioned the United States Supreme Court (http://www.supremecourtus.gov/) for a
writ of certiorari (http://www.law.cornell.edu/wex/index.php/Writ_of_certiorari), which the Court granted on September 25, 2007. Brief for (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Respondent.pdf)
Respondent at 1.

Full discussion and analysis is here (http://www.law.cornell.edu/supct/cert/06-11543.html).

[Jake_Blues]

Hmm, no way is DWI a violent act. Doing something stupid that could cause injury doesn't make it a violent crime.

Now, I want to know why he isn't being charged with assault with a deadly weapon and/or attempted murder! Pointing a gun at someone and pulling the trigger? Why is he only being charged with the weapon possession thing?

-E

[PuebloXJ]

The real question is what is a person with 3 felony DWI convections under his belt doing out of jail to begin with?

[Yota]

I tend to agree that DWI was probably never intended to be included as a "violent felony" in the ACCA three strikes law.

[DaJudge]

I tend to agree that DWI was probably never intended to be included as a "violent felony" in the ACCA three strikes law.
ARGUMENT FOR:

"The United States (?Government?) argues that the ACCA?s plain language
encompasses felony recidivist DWI in New Mexico. See Brief for (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Respondent.pdf)
Respondent at 12?17. The ACCA?s definition of a ?violent felony? includes
any felony that ?is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential risk of
physical injury to another . . ..? 18 U.S.C. ? 924(e)(2)(B)(ii) (http://www.law.cornell.edu/uscode/18/924.html). Although
DWI is not among the enumerated felonies, the Government argues that
DWI ?otherwise? threatens others? safety. See Brief for Respondent (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Respondent.pdf) at
12?17. According to the Government, recidivist DWI is particularly risky,
because the offender has demonstrated his disregard for others? safety by
repeatedly drinking and driving. See id. (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Respondent.pdf) at 8. "

ARGUMENT AGAINST:

Begay responds that the ?otherwise? provision only encompasses felonies
similar to the preceding enumerated felonies: burglary, arson, extortion, and
crimes using explosives. Id. (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Petitioner.pdf) at 13?22. Begay notes that the enumerated
crimes are each property crimes typically committed by career criminals as
part of their livelihood, and that each becomes more dangerous when the
criminal carries a firearm. Id. (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Petitioner.pdf) at 21?22. DWI, according to Begay, has very
little in common with the enumerated crimes: a criminal can?t support
himself by drinking and driving, and DWI is no more dangerous with a gun
than without. Id. (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Petitioner.pdf) at 32. Therefore, Begay argues, Congress cannot have
intended ? 924(e)(2)(B)(ii) (http://www.law.cornell.edu/uscode/18/924.html) to encompass DWI. Id. (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Petitioner.pdf)"

[Yota]

I figured that was the primary argument for inclusion, and it is true that DWI can threaten other people's lives, but I just don't think it was intended to be included in this act. This statement sums it up:

Begay notes that the enumerated crimes are each property crimes typically committed by career criminals as part of their livelihood, and that each becomes more dangerous when the criminal carries a firearm.

So yeah this guy deserves felon-in-possession sentencing and should do some serious time but any felony can be construed to risk someone's life. Even white-collar crime, down the line, risks people's lives. You just have to use your imagination a little.

[TwoDogs]

Al, some jurisdictions consider a motor vehicle, a "deadly weapon" for the purpose of, "assualt with cases."

This guy needs the 3 strike policy for "felony stupid."

[DADA_JEEP]

2005 14,068 fatal dui crashes in the us (MADD)
2001 11,328 fatal firearms deaths (intentional) (NRA Website)

that's almost 3000 more deaths per year (on average) from DUI that intentional shootings with firearms. telling me that DUI is not a violent death is rediculous.


those numbers were just some quick internet research, however I'm sure that they are pretty well reflective of the true numbers.

[DaJudge]

Al, some jurisdictions consider a motor vehicle, a "deadly weapon" for the purpose of, "assualt with cases."

This guy needs the 3 strike policy for "felony stupid."
Awwww, c'mon. Don't you feel sorry for the poor guy? After all alcoholism is a disease and he is a victim. It's not 'felony stupid' it's 'felony addicted':

"Larry Begay (?Begay?) has struggled with alcoholism ?for the better part of
his life.? United States v. Begay (http://www.ca10.uscourts.gov/opinions/05/05-2253.pdf), 470 F.3d 964, 966 (10th Cir. 2006).
Since 1983, he has accumulated 22 arrests and 12 convictions for driving
while intoxicated (?DWI?)." 1983-2007=24 years. Almost 1 DWI arrest per year but only 1 conviction every 2 years. WTF?

[DaJudge]

2005 14,068 fatal dui crashes in the us (MADD)
2001 11,328 fatal firearms deaths (intentional) (NRA Website)

that's almost 3000 more deaths per year (on average) from DUI that intentional shootings with firearms. telling me that DUI is not a violent death is rediculous.


those numbers were just some quick internet research, however I'm sure that they are pretty well reflective of the true numbers.
On the other hand:

"The National Association of Criminal Defense Lawyers (http://www.nacdl.org/) (?NACDL?) notes that statistical analysis of self-reported data indicates that the probability that an intoxicated driver will injure another person on any given trip is 0.0025 percent. See Brief of the NACDL as Amicus Curiae in Support of Petitioner (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_PetitionerAmCuNACDL.pdf) at 7?13. According to the NACDL, DWI is a relatively minor cause of auto accidents. See id. (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_PetitionerAmCuNACDL.pdf) at 15?16. By comparison, the NACDL notes that 3.8 percent of burglaries result in violence. Id. (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_PetitionerAmCuNACDL.pdf) at 9. In light of this disparity between DWI and burglary, the NACDL argues DWI should not trigger the ACCA?s harsh penalties. See id. (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_PetitionerAmCuNACDL.pdf) at 15?16. "

[Yota]

I wonder what a meeting of NACDL would smell like. :D

[DADA_JEEP]

On the other hand:

"The National Association of Criminal Defense Lawyers (http://www.nacdl.org/) (?NACDL?) notes that statistical analysis of self-reported data indicates that the probability that an intoxicated driver will injure another person on any given trip is 0.0025 percent. See Brief of the NACDL as Amicus Curiae in Support of Petitioner (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_PetitionerAmCuNACDL.pdf) at 7?13. According to the NACDL, DWI is a relatively minor cause of auto accidents. See id. (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_PetitionerAmCuNACDL.pdf) at 15?16. By comparison, the NACDL notes that 3.8 percent of burglaries result in violence. Id. (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_PetitionerAmCuNACDL.pdf) at 9. In light of this disparity between DWI and burglary, the NACDL argues DWI should not trigger the ACCA?s harsh penalties. See id. (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_PetitionerAmCuNACDL.pdf) at 15?16. "

lets compare that to the loading of a dealdly weapon or the carrying of a knife, etc...... so each time a peroson drives drunk they have .0025% chance of killing someone, so does that mean that each time a weapon is loaded that the carryer has more than a .0025% chance of killing someone?

[DADA_JEEP]

and that felony addicted stuff is a load of bull manure.

[ZappBranigan]

Hmm, no way is DWI a violent act. Doing something stupid that could cause injury doesn't make it a violent crime.

Now, I want to know why he isn't being charged with assault with a deadly weapon and/or attempted murder! Pointing a gun at someone and pulling the trigger? Why is he only being charged with the weapon possession thing?

-E

Because this is a federal case. ADW and attempted murder are state charges. The felon in possession charge is a federal crime.

As for why he was not prosecuted under state law, IIRC Attempted murder is a "specific-intent" crime which requires a proof of intent. I think the intent part can be negated by voluntary intoxication.

[DaJudge]

Because this is a federal case. ADW and attempted murder are state charges. The felon in possession charge is a federal crime.

As for why he was not prosecuted under state law, IIRC Attempted murder is a "specific-intent" crime which requires a proof of intent. I think the intent part can be negated by voluntary intoxication.
100% correct!

[Steve]

2005 14,068 fatal dui crashes in the us (MADD)
2001 11,328 fatal firearms deaths (intentional) (NRA Website)

that's almost 3000 more deaths per year (on average) from DUI that intentional shootings with firearms. telling me that DUI is not a violent death is rediculous.

Nobody said that. :confused: There's a world of difference between DWI and killing someone while you are DWI. He did the former, not the latter. You can't charge him for the latter.

[DADA_JEEP]

i was just making a point that there are more opportunities to be killed by a drunk driver, and it happens more often than by someone armed with a gun.

[Jake_Blues]

ARGUMENT FOR:

"The United States (?Government?) argues that the ACCA?s plain language
encompasses felony recidivist DWI in New Mexico. See Brief for (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Respondent.pdf)
Respondent at 12?17. The ACCA?s definition of a ?violent felony? includes
any felony that ?is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential risk of
physical injury to another . . ..? 18 U.S.C. ? 924(e)(2)(B)(ii) (http://www.law.cornell.edu/uscode/18/924.html). Although
DWI is not among the enumerated felonies, the Government argues that
DWI ?otherwise? threatens others? safety. See Brief for Respondent (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Respondent.pdf) at
12?17. According to the Government, recidivist DWI is particularly risky,
because the offender has demonstrated his disregard for others? safety by
repeatedly drinking and driving. See id. (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Respondent.pdf) at 8. "

ARGUMENT AGAINST:

Begay responds that the ?otherwise? provision only encompasses felonies
similar to the preceding enumerated felonies: burglary, arson, extortion, and
crimes using explosives. Id. (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Petitioner.pdf) at 13?22. Begay notes that the enumerated
crimes are each property crimes typically committed by career criminals as
part of their livelihood, and that each becomes more dangerous when the
criminal carries a firearm. Id. (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Petitioner.pdf) at 21?22. DWI, according to Begay, has very
little in common with the enumerated crimes: a criminal can?t support
himself by drinking and driving, and DWI is no more dangerous with a gun
than without. Id. (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Petitioner.pdf) at 32. Therefore, Begay argues, Congress cannot have
intended ? 924(e)(2)(B)(ii) (http://www.law.cornell.edu/uscode/18/924.html) to encompass DWI. Id. (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-11543_Petitioner.pdf)"

After reading this, I'd have to say that while I still disagree with calling DWI a violent crime, the law is pretty clear, any crime that has a reasonable chance of causing physical injury to another is "violent", and DWI definitely falls into that category.

-E

[shunt]

The real question is what is a person with 3 felony DWI convections under his belt doing out of jail to begin with?



Making a beer run........:shrug:

[Steve]

...the law is pretty clear, any crime that has a reasonable chance of causing physical injury to another is "violent"...

-E

By that criteria excessive speeding could be classed as a violent crime. :shrug:

[old_man]

he has accumulated 22 arrests and 12 convictions for driving
while intoxicated

I say throw away the key.:flipoff2:

Being

[old_man]

he has accumulated 22 arrests and 12 convictions for driving
while intoxicated

I say throw away the key.:flipoff2:

Being an alcholic is no excuse to drive drunk. If you can't keep from drinking and driving by yourself, the government should do it for you.

NO SYMPATHY.

My only question is why he wasn't in jail to start with.

[PaleBlue90]

he has accumulated 22 arrests and 12 convictions for driving
while intoxicated

I say throw away the key.:flipoff2:

Being an alcholic is no excuse to drive drunk. If you can't keep from drinking and driving by yourself, the government should do it for you.

NO SYMPATHY.

My only question is why he wasn't in jail to start with.

i agree, beaing a Alcholic is no excuse what so ever

[1984flht]

I cleaned the messes they make from the roads for the best part of thirty years. There is no doubt in my mind that it is a violent crime. Most just get lucky.

[Ric]

its not a "violent crime" until that guy drove over your 8 year old son, dismembering his body and killing him.
IMO, anyone, that drives drunk should be shot. I have ZERO respect for anyone that drives drunk.
Everyone has friends, everyone has family that loves or even cares about them, if you have to drink and drive or worse get drunk, and drive, call someone to come and get you. :thumbsup:

[denverd0n]

Okay, here's my problem with this. DWI shouldn't NEED to be defined as a "violent crime." DWI, all by itself, violent or not, should be a really, REALLY serious crime! But it's not. We treat it as a minor infraction. This guy had... what? 12 convictions for DWI and he's still out driving around. After the third conviction he should have been thrown in the hole and we should have thrown away the key!

I don't believe that the intent of this particular law would include DWI as a violent crime. That doesn't change the fact that he should be put away for life and never allowed to associate with polite society again.

[TheCopperCowboy]

Help me out here. What are the results and precursors of excessive alcohol consumption, again? :shrug: Not that I would have any intimate knowledge of them. :D

[Jake_Blues]

By that criteria excessive speeding could be classed as a violent crime. :shrug:

Like I said, I don't agree with it, but that's the way it reads, yea.

-E