By Kimberly Atkins
The Daily Record Newswire
BOSTON, MA -- The justices of the U.S. Supreme Court considered on Wednesday whether a prior conviction for fleeing from police qualifies a defendant for an enhanced sentence under federal law.
Marcus Sykes pleaded guilty to being a felon in possession of a firearm under the Armed Career Criminal Act after he was arrested for brandishing a gun while attempting to rob two people who were sitting in a parked car outside an Indianapolis liquor store.
A pre-sentence report concluded that Sykes was subject to a sentencing enhancement under the Act because he had three previous violent felony convictions.
Sykes objected, arguing that one of his prior convictions -- for resisting law enforcement in a vehicle -- didn't constitute a violent felony. The district court rejected his argument and gave Sykes an enhanced sentence of 188 months.
The 7th Circuit affirmed, agreeing that Sykes' prior Indiana conviction for fleeing law enforcement was a violent felony conviction because it involved a serious risk of physical injury others.
The circuits are split on the issue, and the Supreme Court granted Sykes' petition for certiorari.
At oral arguments, William E. Marsh, executive director of Indiana Federal Community Defenders, argued on Sykes' behalf that under the Indiana law in question, pulling over to "find a safe place to pull over" could result in a conviction, even if no violence is involved.
"Looking for a safe place to stop violates the statute?" asked Chief Justice John G. Roberts, Jr.
"That was the holding of the Indiana Court of Appeals, yes," Marsh said.
"I don't drive in Indiana," quipped Justice Antonin Scalia. "I think that's pretty tough."
Marsh argued that the state statute in question has different categories of the violation, ranging from looking for a place to stop to using a vehicle to try to mow cops down.
But Scalia noted that prosecutors often plea bargain with defendants charged with acts that "involved physical risk because, as everybody knows, prosecutors plea bargain [and the] defendant is charged only under category one."
Justice Elena Kagan noted that the lower category the defendant was charged with "receive[s] the same punishment" as the more serious category and "they're both classed as a class D felony."
"Why should we make the distinction between the two under ACCA?" Kagan asked.
"[Because] the Indiana General Assembly has decided in enacting this legislation that some vehicular fleeing presents a substantial risk of bodily injury to another, and some doesn't, and they've drawn this distinction," Marsh said
Justice Sonia Sotomayor pointed out that other crimes that trigger the ACCA may not involve actual violence.
"ACCA defines burglary as a qualifying crime of violence" because of the risk it poses, Sotomayor noted. "Where do we draw the line?"
"The line is defined by the statute: 'Serious potential risk of physical injury to another,'" Marsh said.
Jeffrey B. Wall, assistant to the solicitor general, argued that fleeing police, as a category of crime, is serious enough to trigger the ACCA.
"We have extensive data, both empirical and otherwise, that indicates that flight as a basic offense is very dangerous," Wall said.
Sotomayor asked how "merely not stopping when a police officer tells you not to stop" can be considered dangerous.
"You are driving away in response to an officer's command to stop," Wall said. "You're calling the officer to give chase."
"Wouldn't that suggest that if I just ran from a police officer, it would be a violent felony under ACCA?" asked Kagan.
"The flight in a vehicle poses risks, very real risks, to other motorists and pedestrians and police that flight on foot doesn't pose," Wall said.
"Do words mean nothing?" Scalia asked. "I mean, we are talking about a 'violent felony.' That's what the federal law requires. And you want us to hold that failing to stop when a police officer tells you to stop is a violent felony? That seems to be a big leap."
Justice Ruth Bader Ginsburg was not present for oral arguments, but Roberts announced that she would "participate in the argument through the transcripts and the tapes."
A decision from the Court is expected later this term.
Published: Fri, Jan 14, 2011
