Is Entering with Intent To Commit an Offense a Violent Felony?

James v. United States

Under the Armed Career Criminal Act (ACCA) possession of a firearm by a convicted felon carries a 15 year prison sentence if the defendant has three prior convictions ‘for a violent felony or a serious drug offense.” The question here is whether attempted burglary, defined by Florida law as entering or remaining in a structure or conveyance with the intent to commit an offense therein (unless the premises are at the time open to the public or the defendant is licensed or invited to remain therein), is a “violent felony.” This is not a violent felony under ACCA because it does not have, as an element, the use, attempted use, or threatened use of physical force against the person of another.

James (Appellant) argues that because Congress included offenses that have as an element the attempted use of physical force (clause (i)), and its failure to include attempted burglary in its enumeration of specifically covered crimes (clause (ii)) categorically excludes attempt offenses. The Court is not convinced because clause (i) is couched in narrow language while clause (ii) is couched in broad language – “…or otherwise involve[e] conduct that presents a serious potential risk of physical injury to another.” Nor is the fact that all enumerated crimes in clause (ii) (burglary, arson, extortion, and use of explosives) are completed crimes convincing. First of all, crimes involving the use of explosives are not necessarily completed crimes. Second, the common feature of those crimes is not their completion, but their risk of bodily injury.

Next, James argues that Congress rejection of a version of clause (ii) that included conspiracy to commit those completed crimes suggests that Congress intended to exclude attempt offenses. However, the expansive language cited in clause (ii) was added by a later Congress, which might have had different motivations.

The elements of the crime of which James was convicted must still independently qualify as a crime involving “conduct that presents a serious potential risk of physical injury to another.” Finding that attempted burglary poses the same threat of confrontation, and thereby, the same threat of physical harm, as its closest enumerated analogue (completed burglary), the Court finds that it fits into the category of clause (ii). Indeed, all courts of appeal, and the federal sentencing commission, have agreed.

James also challenges the law’s application as applied to his case. However, due to the Taylor precedent, and the fact that the nature of the inquiry is already probabilistic, the Court declines to consider the statute as applied. The dissent interprets the law to require at least as much probability as the completed crime, but the text does not support this requirement, and the dissent’s approach does not achieve its stated objective – providing guidance to the lower courts.

Nor does Florida’s inclusion of the cartilage (area around the house) in its definition reduce the danger presented by the elements of the offense. Finally, since the inquiry here is a matter of statutory interpretation, and not impermissible judicial fact-finding, the law does not violate the Sixth Amendment under Aprendi (in short, that the jury must find the facts of all the elements of a crime, not the judge).

Justice Scalia, dissenting, argues for a bright line rule that will give guidance to lower courts. Is driving under the influence more analogous to burglary, arson, extortion, or a crime involving the use of explosives? Nor is Justice Scalia of the opinion that an unenumerated offense that presents less risk than its closest analogue, but more than another enumerated offense, should be excluded for that reason alone. One approach would be to limit ACCA to its enumerated crimes. Another would be to categorically consider attempted crimes to be the same as completed crimes for the purposes of ACCA. Justice Scalia would determine whether the crime in question poses less of a risk of bodily injury than the least risky enumerated crime, which he determines to be burglary. At this point, instead of following the majority, Justice Scalia concludes that attempted burglary categorically poses a less serious risk of potential physical injury to others than completed burglary, and therefore must be excluded from clause (ii).