Sykes v. United States

Under the Armed Career Criminal Act (“ACCA”), a defendant with three "violent felony" convictions is subject to a mandatory fifteen-year minimum sentence. See Brief for Respondent, The United States at 2. Marcus Sykes, who was sentenced under the ACCA, concedes that he has two qualifying convictions, but contends that his Indiana conviction for intentional vehicular flight from a law enforcement officer (Indiana Code § 35-44-3-3(b)(1)(A)) does not fall under the residual clause within the ACCA's definition of "violent felony." See Brief for Petitioner, Marcus Sykes at 3, 5. The parties agree that the determination of whether an offense falls within the residual clause is a "categorical approach" that examines the conviction in light of its legal definition, not the crime's specific factual circumstances. See Id. at 9; Brief for Respondent at 9. The parties also agree that the proper inquiry for determining whether Sykes' vehicular flight conviction is a "violent felony" under the ACCA is to ask whether it is both (1) similar in kind, and (2) similar in the degree of risk posed as the felonies specifically enumerated by the ACCA—burglary, arson, extortion, and crimes involving the use of explosives. See Brief for Petitioner at 9; Brief for Respondent at 8, 23. The parties disagree, however, over how to apply this two-part test.

Is Vehicular Flight Similar in Kind to the ACCA’s Enumerated Felonies?

To fall within the ACCA's "violent felony" residual clause, the Court must first find the offense in question to be similar in kind to the enumerated felonies. The United States argues that this requires a finding that the offense involves purposeful, violent, and aggressive conduct. See Brief for Respondent at 23. The United States further argues that vehicular flight meets this test. See Id. at 24–25. First, the United States alleges that the conduct is necessarily purposeful because vehicular flight requires that the defendant act "knowingly or intentionally." See Id. at 25. Sykes concedes this point. See Brief for Petitioner at 11.

Second, the United States argues that vehicular flight typically involves aggressive and violent conduct. See Brief for Respondent at 27. It alleges that this conclusion stems from the nature of the crime, which necessarily involves a driver's deliberate decision to flee from an officer. See Id. at 29. The United States argues that the act of flight challenges the officer to try to capture the offender, thus endangering the officer. See Id. at 29–30. Furthermore, the government argues that a driver is likely to take substantial risks while attempting to flee an officer, including speeding or driving on the wrong side of the road, and thus the confrontation has the potential to injure innocent passengers, other motorists, and pedestrians. See Id. at 30–31.

Sykes argues, however, that this evaluation of potential risks that might arise from the crime is improper, and instead contends that the Court must only consider the conduct encompassed by the specific elements of the offense, which merely requires a failure to stop. See Brief for Petitioner at 12. Sykes alleges that because the vehicular fleeing offense contains no element of violent or aggressive conduct, the consideration of possible violent consequences improperly expands upon the elements of the offense. See Id. Sykes offers an example of a driver who purposefully fails to stop, but continues driving in a safe manner to show that while this person may be guilty of vehicular flight, he is not acting aggressively or violently. See Id. at 14. Additionally, Sykes reasons that a finding that conduct is potentially aggressive and violent is a factual determination leading to an increased prison sentence—a determination that must be made by a jury under the Sixth Amendment. See Id. at 12–13.

The United States disagrees with Sykes’ analysis, contending instead that the focus is on the "conduct" involved in the commission of an offense, not the elements required for conviction. See Brief for Respondent at 34–35. Furthermore, the government argues that under the categorical approach it is not the risks created by the defendant's specific conduct that are at issue, but those created by the typical conduct in the ordinary case. See Id. at 35. Therefore, the United States alleges that the determination of whether an offense in the ordinary case is violent and aggressive is a question of statutory interpretation, not a factual determination. See Id. at 36. Accordingly, the government argues that there are no Sixth Amendment concerns, and the Seventh Circuit was well within its right to consider the potential consequences of injuries to pedestrians, innocent passengers, other motorists, and the pursuing officer, so long as these were likely consequences in the ordinary case of vehicular flight. See Id. at 35–36.

Alternatively, Sykes argues that the vehicular flight offense does not encompass aggressive and violent conduct because under the Indiana Code there is a separate offense identical to vehicular flight, but that offense also involves operating a vehicle in a manner that creates a substantial risk of injury to another person as an element of the crime. See Brief for Petitioner at 14. Sykes contends that this alternative crime's existence reveals that the conduct encompassed by vehicular flight from police is unlikely to be violent or aggressive because an offender acting in such a way would likely be charged under the alternative offense. See Id. at 15, 17. Sykes reasons that differentiating between the different types of flight was a conscious decision by the Indiana legislature, and the Court should respect that decision when classifying crimes under the ACCA. See Id. at 15.

The United States disagrees, however, arguing that there are many reasons why a state might choose to charge someone under one statute and not the other, particularly since the two felonies in question here are both Class D felonies and are equally as serious. See Brief for Respondent at 45–46. Thus, the United States contends that the state may have chosen to prosecute Sykes for vehicular flight because it was easier to prove, since all that was required was that Sykes be driving a car when he fled the police. See Id. at 46. Furthermore, even if the penalties were different, the fact that conduct might have been prosecuted another way is irrelevant because the categorical approach only requires an inquiry into the ordinary conduct constituting vehicular flight, and does not take into account any other separate or distinct offenses that may sometimes be available to prosecutors. See Id. at 49.

Is the Degree of Risk Posed by Vehicular Flight Similar to that of the ACCA’s Enumerated Felonies?

Besides being similar in kind, a felony can only fall within the ACCA's "violent felony" residual clause if the Court finds that the degree of risk posed by it is similar to that of the enumerated felonies. Sykes argues that because the state presented no empirical evidence of the risks created by vehicular flight, it failed to meet its burden of proof. See Brief for Petitioner at 17. Without empirical data, Sykes contends that the degree of risk posed by vehicular flight is improper because it is left to judicial conjecture. See Id. Therefore, Sykes argues that because this is a necessary element of the ACCA's residual clause, the enhanced sentence should not have been applied. See Id. at 16–17.

The United States, while agreeing that the degree of risk must be similar to the enumerated crimes, argues that there is nothing to indicate that Congress intended the courts to make this judgment on empirical data rather than their experience and common sense. See Brief for Respondent at 15–16. The United States alleges that were empirical evidence to become a requirement, crimes that are clearly "violent felonies" might nevertheless not qualify under the ACCA because of a lack of statistical evidence. See Id. at 16. Furthermore, the government argues that case law, media reports, statistical data, and common sense all tend to show that a person engaged in vehicular flight will ordinarily use any means necessary to escape, often endangering the pursuing officer, pedestrians, innocent passengers in the car, or other motorists. See Id. at 15.