Wednesday, July 30, 2008

Glitter and Begay

United States v. Gray, No. 07-3636-cr (2d Cir. July 25, 2008) (Wesley, Hall, CJJ, Koeltl, DJ)

In New York, reckless endangerment in the first degree involves conduct “evincing a depraved indifference to human life” that “creates a grave risk of death to another person.” Nevertheless, under Begay v. United States, 128 S.Ct. 1581 (2008), the circuit here concludes, it is not a “crime of violence.”

Under Begay, which interpreted the Armed Career Criminal Act, 18 U.S.C. § 924(e), an offense must present a degree of risk similar to, and proscribe conduct that is similar in kind to, the offenses listed in the statute - burglary, arson, extortion and offenses involving explosives - to qualify as a "crime of violence." For “in kind” similarity, the statute must involve conduct that is “purposeful,” “violent,” and “aggressive.”

Here, the court applied this same rubric to the definition of “crime of violence” in sentencing guidelines, which is identical to that in § 924(e), and concluded that reckless endangerment in the first degree is not a crime of violence. While the statute describes conduct that poses a sufficient degree of risk, the offense is not similar “in kind” to the listed offenses because it does not “criminalize purposeful or deliberate conduct.”

This case also reminds that the Begay analysis is “categorical”; it looks only to the statutory elements, and ordinarily the defendant’s actual conduct is irrelevant.



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