Collateral consequences

The 8th Circuit Court of Appeals considers a conviction of “housebreaking,” under Article 130, UCMJ, to be a crime of violence for firearms possession charges in federal district court. We frequently are asked by clients if they can still own a firearm. The answer is a very nuanced one, as Begay and Whetzell indicate.

Appellant’s prior crime, the crime of housebreaking, occurs when “[a]ny person subject to [the Uniform Code of Military Justice] . . . unlawfully enters the building or structure of another with intent to commit a criminal offense therein. . . .” 10 U.S.C. § 930. . . . Appellant’s primary argument against this conclusion is that the district court improperly referenced the military court’s discussion of the underlying facts of his conviction. Generally, a court is only to consider “the fact of conviction and the statutory definition of the prior offense.” Taylor, 495 U.S. at 602. But the district court’s reference in this case to the underlying facts of Appellant’s housebreaking conviction, as articulated in the military court’s opinion, does not change the fact that the elements of housebreaking constitute a generic burglary crime, a crime of violence under our precedents. Further, and contrary to Appellant’s argument, the Supreme Court’s opinion in Begay v. United States, 553 U.S. 137 (2008), did not alter our decisions in regard to generic burglary and does not provide reason for reversal.

See, United States v. Whetzell, No. 09-1463 (8th Cir. February 10, 2010). I have linked to the SCOTUSWiki version of Begay because it has some interesting information about what constitutes a crime of violence for purposes of the Armed Career Criminal Act.

The act defines “violent felony” to include any adult crime punishable by at least one year’s imprisonment 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.” This last clause is referred to as the “otherwise” or “residual” clause. The ACCA also defines “serious drug offense” to include offenses under state law “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.” Begay v. United States asks whether a felony conviction for driving while intoxicated counts as a “violent felony” under the ACCA.

Sorry, for a headnote cite:

Held: New Mexico’s felony DUI crime falls outside the scope of the Act’s clause (ii) “violent felony” definition. Pp. 3–10. (a) Whether a crime is a violent felony is determined by how the law defines it and not how an individual offender might have committed it on a particular occasion. Pp. 3–4. (b) Even assuming that DUI involves conduct that “presents a serious potential risk of physical injury to another” under clause (ii), the crime falls outside the clause’s scope because it is simply too unlike clause (ii)’s example crimes to indicate that Congress intended that provision to cover it. Pp. 4–10.