David C. Holman

Document Type



Confusion reigns in federal courts over whether crimes qualify as “violent felonies” for purposes of the Armed Career Criminal Act (“ACCA”). The ACCA requires a fifteenyear minimum sentence for felons convicted of possessing a firearm who have three prior convictions for violent felonies. Many offenders receive the ACCA’s mandatory minimum sentence of fifteen years based on judges’ guesses that their prior crimes could be committed in a violent manner—instead of based on the statutory crimes for which they were actually convicted. Offenders who do not deserve a minimum sentence of fifteen years may receive it anyway. The courts’ application of the ACCA is also underinclusive. Although the ACCA defines “violent felony” to include all crimes “involving conduct that presents a serious potential risk of bodily injury to another,” a 2008 Supreme Court decision has drastically narrowed the so-called residual clause. Begay v. United States held that crimes fall under the residual clause only if they are “purposeful, violent, and aggressive” as a matter of law. This imprecise, extra-statutory formula has resulted in the exclusion of some seriously risky crimes of recklessness and negligence, and created tension with the nearly identical “crime of violence” definition in the career offender sentencing guideline. This Article is the first to survey ACCA jurisprudence after Begay and the Court’s 2009 decision in Chambers v. United States and to detail the conflict between these decisions, the text of the ACCA, and the Court’s prior precedent. This Article offers lower courts a way to apply the ACCA’s residual clause with greater respect for the Sixth Amendment right to a jury trial, the statutory text, and precedent. First, courts should narrowly construe Begay’s requirement of “purposeful” conduct to exclude strict liability crimes from the residual clause but include crimes of negligence and recklessness. Second, courts should read Begay’s “aggressive” requirement as a rhetorical flourish without any meaningful distinction from its “violent” requirement. Third, despite Begay’s apparent invitation to do otherwise, courts should strictly follow the “categorical approach” as set forth in Taylor v. United States. The net result of these three steps would be a greater faithfulness to the text of the ACCA: courts applying the residual clause would include only those crimes whose elements require violent conduct while excluding those crimes whose elements do not require violence or any mens rea.