Welch v. United States

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3108

D EVIN W ELCH,

Petitioner-Appellant,

v.

U NITED STATES OF A MERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 2:08-cv-02051-MPM-DGB—Michael P. McCuskey, Chief Judge.

A RGUED D ECEMBER 4, 2009—D ECIDED M AY 4, 2010

Before P OSNER, R IPPLE and W OOD , Circuit Judges.

R IPPLE, Circuit Judge. In 2005, Devin Welch pleaded

guilty to unlawful possession of a firearm by a felon.

He then brought a motion under 28 U.S.C. § 2255 to

vacate his sentence. The district court denied the § 2255

motion in pertinent part. We granted a certificate of

appealability to address two of Mr. Welch’s contentions.

First, he submits that his prior conviction for the Illinois

crime of aggravated fleeing or attempting to elude a

police officer cannot qualify as a “violent felony” within

2 No. 08-3108

the meaning of the Armed Career Criminal Act (“ACCA”).

Second, he submits that his prior juvenile adjudication

cannot be used to enhance his sentence beyond the statu-

tory maximum because it was not obtained by a jury

trial. For the reasons set forth in this opinion, we affirm

the judgment of the district court.

I

BACKGROUND

In 2005, Devin Welch pleaded guilty to unlawful pos-

session of a firearm by a felon, in violation of 18 U.S.C.

§ 922(g)(1). The presentence report (“PSR”) indicated

that Mr. Welch had four prior convictions that were

“violent felonies” for purposes of the ACCA: two aggra-

vated batteries, aggravated fleeing or attempting

to elude a police officer and a juvenile adjudication for

attempted armed robbery. Without the ACCA’s statutory

enhancement, the statutory maximum sentence for

Mr. Welch’s crime was 120 months.

At sentencing, Mr. Welch’s counsel made no objec-

tions to the PSR, but Mr. Welch submitted handwritten

memoranda making objections pro se. One of those

objections was to the use of the previous convictions to

enhance his sentence. The district court overruled the

objections and sentenced Mr. Welch to 180 months’

imprisonment, to be followed by a five-year term of

supervised release. The district court did not rely on one

of the aggravated battery convictions—for spitting—but,

as a result of the other three violent felonies, Mr. Welch

No. 08-3108 3

was nonetheless subject to the ACCA’s mandatory mini-

mum sentence of 180 months’ imprisonment.1 See 18 U.S.C.

§ 924(e)(1). On direct appeal, Mr. Welch, through counsel,

did not pursue any of the pro se objections. He con-

tended only that the trial court had erred in failing to

specify the number of required drug tests during the

period of supervised release. We summarily affirmed

the district court’s judgment. United States v. Welch,

No. 06-3385 (7th Cir. Feb. 21, 2007).

Mr. Welch next filed a pro se § 2255 motion. He con-

tended that his conviction for aggravated fleeing or

attempting to elude a police officer was not a violent

felony because, under Illinois law, the offense is charac-

terized as a “serious traffic offense but not something

that presents a serious potential risk of physical injury

to another.” R.1 at 11.2 He also contended that his

juvenile adjudication could not be used to enhance

his sentence beyond the statutory maximum consistent

with the Sixth Amendment because it did not result

from a jury trial; he also contended that his counsel

had been ineffective for failing to raise this claim.3

The district court denied these aspects of the motion. In

rejecting Mr. Welch’s ACCA claim, it relied on United

1

The Government concedes that if Mr. Welch’s appeal is

successful, he is entitled to be resentenced.

2

R.__ refers to the record of the § 2255 proceeding.

3

Mr. Welch also again challenged the district court’s drug

testing ruling. This aspect of the motion was granted, and is not

at issue in this appeal. Also, Mr. Welch raised other ineffective

assistance challenges that are not renewed on appeal.

4 No. 08-3108

States v. Howze, 343 F.3d 919, 921 (7th Cir. 2003), in

holding that flights to avoid arrest categorically created

a serious potential risk of injury to another and were

thus violent felonies. In rejecting Mr. Welch’s ineffective

assistance claim, it noted that, at the time of sentencing,

the circuits were divided 3-1 against Mr. Welch’s posi-

tion, with the Seventh Circuit silent. Thus, it was reason-

able for counsel to choose not to raise the issue. More-

over, Mr. Welch suffered no prejudice because he had

raised the issue pro se.

We initially granted a certificate of appealability

only on the issue of ineffective assistance. We subse-

quently expanded the certificate to include the issue of

whether Mr. Welch’s conviction for aggravated fleeing

or attempting to elude a police officer properly was

classified as a violent felony in light of the Supreme

Court’s decision in Begay v. United States, 553 U.S. 137

(2008).

II

ANALYSIS

A.

1.

Initially, we note that we have held that deviations

from the Sentencing Guidelines generally are not cogniza-

ble on a § 2255 motion. United States v. Scott, 997 F.2d 340,

343 (7th Cir. 1993). Other circuits have reached a similar

No. 08-3108 5

conclusion.4 However, Scott does not govern the situation

before us for two reasons. First, Scott relied, in significant

part, on the text of § 2255, and suggested that the Guide-

lines were not “laws of the United States.” Id. at 341; see

also Taylor v. Gilkey, 314 F.3d 832, 833 (7th Cir. 2002)

(“Because the Guidelines are not ‘laws’ for purposes of

§ 2255, however, this argument could not support re-

lief.”); Brannigan v. United States, 249 F.3d 584, 588 (7th

Cir. 2001) (same). That rationale does not apply here

because the statutory text clearly permits relief if “the

sentence was in excess of the maximum authorized by

law.” 28 U.S.C. § 2255(a). Here, Mr. Welch pointedly

argues that his sentence, as enhanced by the ACCA, is

above the statutory maximum, which would entitle him

4

See, e.g., United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th

Cir. 1999) (collecting cases); Jones v. United States, 178 F.3d 790,

796 (6th Cir. 1999) (“Moreover, an error in the application of

the Sentencing Guidelines does not warrant collateral relief

under § 2255 absent a complete miscarriage of justice.”); Burke

v. United States, 152 F.3d 1329, 1332 (11th Cir. 1998) (“We

thus hold that a claim that the sentence imposed is contrary to

a post-sentencing clarifying amendment is a non-constitutional

issue that does not provide a basis for collateral relief in the

absence of a complete miscarriage of justice.”); Graziano v.

United States, 83 F.3d 587, 590 (2d Cir. 1996) (collecting cases).

We also note that the Supreme Court has held that an error

of law, as distinguished from a constitutional error, is cog-

nizable under § 2255 only if it “constituted a fundamental

defect which inherently results in a complete miscarriage of

justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979)

(internal quotation marks and citation omitted).

6 No. 08-3108

to relief.5 Second, our decision in Scott was based in

significant part on the difference between direct appeal

and collateral attack, ultimately concluding “that argu-

ments of the sort Scott proffers must be advanced on

direct appeal or not at all.” Scott, 997 F.3d at 343. How-

ever, “arguments of the sort” at issue here, where a

change in law reduces the defendant’s statutory maxi-

mum sentence below the imposed sentence, have long

been cognizable on collateral review.6

5

See United States v. Peterman, 249 F.3d 458, 462 (6th Cir. 2001)

(“Courts have generally declined to collaterally review sentences

that fall within the statutory maximum.”); United States v.

Pregent, 190 F.3d 279, 284 (4th Cir. 1999) (“Thus, while § 2255

applies to violations of statutes establishing maximum sen-

tences, it does not usually apply to errors in the application of

the Sentencing Guidelines.”); Auman v. United States, 67 F.3d

157, 161 (8th Cir. 1995) (“While section 2255 does provide

relief for cases in which ‘the sentence was in excess of the

maximum authorized by law,’ this provision applies to viola-

tions of statutes establishing maximum sentences, rather than

garden-variety Sentencing Guideline application issues.”); cf.

United States v. White, 584 F.3d 935, 948 (10th Cir. 2009) (holding

that appeal waiver made in a plea agreement results in a

miscarriage of justice “where the sentence exceeds the stat-

utory maximum” (citation omitted)); United States v. Sisco,

576 F.3d 791, 796 (8th Cir. 2009) (same); United States v.

Guillen, 561 F.3d 527, 531 (D.C. Cir. 2009) (same).

6

In Davis v. United States, 417 U.S. 333 (1974), a change in

intervening law narrowed the petitioner’s statute of conviction,

potentially excluding petitioner’s conduct. The Supreme Court

held that:

(continued...)

No. 08-3108 7

Finally, we note that the Government has waived

any procedural default argument by failing to address

the issue in its brief. See Torzala v. United States, 545

F.3d 517, 522 (7th Cir. 2008) (“Because the government

did not assert procedural default as a defense in this

action but instead chose to respond on the merits, how-

ever, the government has waived the procedural default.”).

2.

We next must consider whether the rule announced in

Begay, that a crime must be similar in kind to the enu-

merated offenses in order to qualify as a violent felony

under the ACCA, is applicable under the Supreme

Court’s retroactivity framework. If it is, then the error of

which Mr. Welch complains is cognizable in this col-

lateral review proceeding.

New procedural rules that are established after a con-

viction becomes final generally do not apply on collateral

6

(...continued)

If [petitioner’s] contention is well taken, then Davis’

conviction and punishment are for an act that the law

does not make criminal. There can be no room for

doubt that such a circumstance “inherently results in a

complete miscarriage of justice” and “present[s] excep-

tional circumstances” that justify collateral relief under

§ 2255.

Id. at 346-47 (brackets in original). As we shall demonstrate in

the text, the situation before us is analogous.

8 No. 08-3108

review. Teague v. Lane, 489 U.S. 288, 310 (1988). New

substantive rules, however, are not barred by the

Teague rule. The Supreme Court has explained this dis-

tinction:

New substantive rules generally apply retroac-

tively. This includes decisions that narrow the

scope of a criminal statute by interpreting its

terms, as well as constitutional determinations

that place particular conduct or persons covered

by the statute beyond the State’s power to punish.

Such rules apply retroactively because they neces-

sarily carry a significant risk that a defendant

stands convicted of an act that the law does not

make criminal or faces a punishment that the

law cannot impose upon him.

Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004) (internal

quotation marks and citations omitted, emphasis re-

moved).

These substantive rules stand in contrast to procedural

rules which:

do not produce a class of persons convicted of

conduct the law does not make criminal, but

merely raise the possibility that someone con-

victed with use of the invalidated procedure

might have been acquitted otherwise.

Id. at 352.

Our colleagues in the Tenth Circuit recently have ad-

dressed this substantive/procedural distinction. In

United States v. Shipp, 589 F.3d 1084 (10th Cir. 2009), that

court had to decide whether Chambers v. United States,

No. 08-3108 9

___U.S. ___, 129 S. Ct. 687 (2009), is to be applied retroac-

tively.7 As we shall discuss in detail later, Chambers, like

7

One circuit granted a certificate of appealability on the

question of Begay’s retroactivity as applied to the career offender

Sentencing Guideline, but then held that “[b]ecause his status

as a career offender is a non-constitutional issue that Coley

could have raised on direct appeal, it is not cognizable on

collateral review under § 2255.” United States v. Coley, No. 08-

15962, 2009 WL 2019859, at *3 (11th Cir. July 14, 2009) (per

curiam).

One other circuit has stated in dicta that that circuit’s

holding that non-residential burglary is not per se a “crime of

violence” under the Sentencing Guidelines is not retroactive.

United States v. Giggey, 551 F.3d 27, 36 n.3 (1st Cir. 2008).

District courts have split on the question of Begay’s retroac-

tivity. Compare United States v. Ross, No. 09-cv-779-bbc, 2010

WL 148397, at *4 (W.D. Wis. Jan. 12, 2010) (not retroactive);

United States v. Jones, No. 6:09-7082-DCR, 2010 WL 55930, at *3-*6

(E.D. Ky. Jan. 4, 2010) (same); Kirkland v. United States, No. 3:09-

CV-335 RLM, 2009 WL 3526185, at *8 (N.D. Ind. Oct. 22, 2009)

(same); United States v. Johnson, No. 04-269 (MJD/AJB), 2009

WL 2611279, at *3-*4 (D. Minn. Aug. 24, 2009) (same); Sun

Bear v. United States, No. CIV 08-3021, 2009 WL 2033028, at *3-*4

(D. S.D. July 9, 2009) (same); United States v. Narvaez, No. 09-cv-

222-bbc, 2009 WL 1351811, at *1 (W.D. Wis. May 12, 2009)

(same); Lindsey v. United States, No. 09-0249-CV-W-ODS, 2009

WL 2337120, at *2 (W.D. Mo. July 29, 2009) (same); United States

v. Campbell, No. 6:06-812-HMH, 2009 WL 1254287, at *1 (D. S.C.

May 1, 2009) (same), with United States v. Fondren, No. 4:06-CR-22

CEJ, 2009 WL 3246906, at *1 (E.D. Mo. Oct. 6, 2009) (retroactive);

(continued...)

10 No. 08-3108

7

(...continued)

Kendrick v. United States, No. 5:08-cv-447-Oc-10GRJ, 2009 WL

2958976, at *2 (E.D. Fla. Sept. 15, 2009) (same); United States v.

Blue, No. 09-1108, 2009 WL 2581284, at *3-*4 (D. Kan. Aug. 20,

2009) (finding Chambers to be retroactive); Frederick v. United

States, No. 08-22143-CV, 2009 WL 2488965, at *8 (S.D. Fla.

Aug. 12, 2009) (retroactive) (adopting magistrate judge’s

report finding Begay to be retroactive); McCarty v. United States,

No. 8:08-cv-1619-T-24TBM, 2009 WL 1456386, at *2 (M.D. Fla.

May 22, 2009) (retroactive); George v. United States, 650 F. Supp.

2d 1196, 1200 (M.D. Fla. 2009) (same); United States v.

McElroy, No. 09-CV-0040-CVE-PJC, 2009 WL 1372908, at *2-*3

(N.D. Okla. May 14, 2009) (same); United States v. Radabaugh,

No. 08-CV-762-CVE-TLW, 2009 WL 565065, at *5 (N.D. Okla.

Mar. 5, 2009) (same); United States v. Leonard, No. 08-CV-0389-

CVE-FHM, 2009 WL 499357, at *3-*4 (N.D. Okla. Feb. 27, 2009)

(same); United States v. Glover, No. 08-CV-0261-CVE-FHM,

2008 WL 2951085, at *4 (N.D. Okla. July 28, 2008) (same).

Those holding that the Begay rule is substantive have rea-

soned, just as the Tenth Circuit did, that “Begay limits the

authority of a court to increase a defendant’s punishment for

certain types of conduct.” McElroy, 2009 WL 1372908, at *3; see

also Frederick, 2009 WL 2488965, at *8 (carrying a concealed

firearm “is now categorically outside the reach of the federal

statute”); Blue, 2009 WL 2581284, at *4 (“Defendants who

have been sentenced on the basis of certain prior convictions

may thus have been subjected to increased punishment that the

law did not allow.”); McCarty, 2009 WL 1456386, at *2 (holding

that Begay “narrows the scope of § 924(e) by interpreting its

terms, making the conduct for which Petitioner was sentenced

no longer a valid basis for his sentence”).

(continued...)

No. 08-3108 11

Begay, interpreted the ACCA and narrowed the scope of

“violent felony.” The Tenth Circuit held that Chambers

articulated “a substantive rule of statutory interpreta-

tion.” Shipp, 589 F.3d at 1089. A defendant who “does not

constitute an ‘armed career criminal’ ” after Chambers

has “received ‘a punishment that the law cannot impose

upon him.’ ” Id. at 1091 (quoting Schriro, 542 U.S. at 352).

Accordingly, the court held that Mr. Shipp’s due

process rights were violated and that he was entitled

to collateral relief. Id.8

At the outset of our analysis, we recognize that, although

Begay narrowed the scope of a criminal statute, it did not

narrow any of the elements of a criminal offense. We

also must recognize that Mr. Welch was convicted of,

and punished for, unlawfully possessing a firearm, which

is still criminal conduct after Begay. The question, there-

fore, is whether a statutory rule defining the scope of a

sentencing enhancement that increases the maximum

7

(...continued)

Those district courts holding that Begay is procedural have

suggested that it “does not describe conduct that is beyond

Congress’ power to punish.” Lindsey, 2009 WL 2337120, at *2.

They also have contrasted “a new substantive rule” with “a

rule of interpretation for determining the application of a

sentencing enhancement under the Federal Sentencing Guide-

lines.” Sun Bear, 2009 WL 2033028, at *4. At least one court

has held that Begay is not retroactive because the Supreme

Court has not said it is retroactive. Campbell, 2009 WL 1254287,

at *1.

8

Notably, both parties agree that the Begay rule is substantive.

12 No. 08-3108

allowable statutory sentence on the basis of a prior con-

viction is properly classified as substantive.

There is significant merit to the Tenth Circuit’s analysis.

In essence, Begay narrowed substantially Mr. Welch’s

exposure to a sentence of imprisonment. Without the

ACCA enhancement, Mr. Welch faced a statutory

maximum of 10 years’ imprisonment. With the ACCA

enhancement, Mr. Welch faced a statutory minimum of 15

years’ imprisonment. In short, the application of the

ACCA imposed, at a minimum, five years of imprison-

ment that the law otherwise could not impose upon

him under his statute of conviction. Such an increase in

punishment is certainly a substantive liability. By con-

trast, such an increase in punishment hardly resembles

a procedural device, as the term is used in Schriro. It does

not address the accuracy of the process afforded

Mr. Welch; it addresses the degree to which the Gov-

ernment may punish him for his violation of the law.

No doubt, the change at issue here is not the same as

the change at issue in Schriro. When the elements of a

crime are narrowed, that change serves to prohibit any

punishment for the conduct. Begay prohibits some of that

punishment. We believe, however, that this distinction

is one of degree, not one of kind. Cf. McReynolds v. United

States, 397 F.3d 479, 481 (7th Cir. 2005) (holding that

Booker was not retroactive because “[n]o conduct that

was forbidden before Booker is permitted today; no maxi-

mum available sentence has been reduced”).

Therefore, the Begay rule is retroactively applicable

on collateral review.

No. 08-3108 13

B.

We now turn to Mr. Welch’s substantive contentions

regarding Begay’s application. He submits that his con-

viction for the Illinois offense of aggravated fleeing or

attempting to elude a police officer cannot qualify, con-

sistent with Begay, as a “violent felony” within the

meaning of the ACCA.

1.

We shall begin our analysis by reviewing the law rele-

vant to the interpretation of the ACCA.

The ACCA provides in pertinent part:

In the case of a person who violates section 922(g)

of this title and has three previous convictions by

any court referred to in section 922(g)(1) of this title

for a violent felony or a serious drug offense, or

both, committed on occasions different from one

another, such person shall be . . . imprisoned not

less than fifteen years . . . .

18 U.S.C. § 924(e)(1). The ACCA goes on to define “violent

felony” as follows:

(B) the term “violent felony” means any crime

punishable by imprisonment for a term ex-

ceeding one year, or any act of juvenile delin-

quency involving the use or carrying of a fire-

arm, knife or destructive device that would be

punishable by imprisonment for such term if

committed by an adult, that—

14 No. 08-3108

(i) has as an element the use, attempted

use, or threatened use of physical force

against the person of another; or

(ii) is burglary, arson, or extortion, involves

use of explosives, or otherwise involves

conduct that presents a serious potential

risk of physical injury to another; and

(C) the term “conviction” includes a finding that

a person has committed an act of juvenile delin-

quency involving a violent felony.

Id. § 924(e)(2)(B) & (C).

It is undisputed that the Illinois crime in question is

punishable by imprisonment for a term exceeding one

year,9 and that it is not one of the crimes specifically

enumerated in subsection (ii). Also, the statute does not

necessarily require the use, attempted use or threatened

use of physical force against the person of another. There-

fore, this case centers around the residual clause,1 0 or

whether the crime “otherwise involves conduct that

presents a serious potential risk of physical injury to

another.” Id. § 924(e)(2)(B)(ii).

9

The statute provides that a first violation shall be a class 4

felony. 625 ILCS 5/11-204.1(b). A class 4 felony is punishable

by a sentence of “not less than one year and not more than

3 years.” 730 ILCS 5/5-4.5-45.

10

The Supreme Court’s recent decision in Johnson v. United

States, ___ U.S. ___, 130 S. Ct. 1265 (2010), does not interpret

this clause of the statute.

No. 08-3108 15

In its analysis of the scope of the ACCA, the district court

relied on United States v. Howze, 343 F.3d 919 (7th Cir.

2003). In that case, we held that all escapes, including

fleeing a police officer in a vehicle, were violent felonies.

Id. at 922. We held that escaping or fleeing presented

a serious potential risk of physical injury to another. Id.

We reasoned that “the [ACCA] calls for an assessment

of risk rather than actual outcomes, and the risk that

someone will get hurt during recapture (or flight to

avoid recapture) does not depend on how the offender

got away in the first place.” Id. We further noted that

“flight may be even more dangerous than escape” because

“[c]ollisions between fleeing vehicles and pedestrians

or others who get in the way are common.” Id. Although

“many escapes do not entail flight to avoid capture . . .

all flights involve that risk-creating conduct.” Id. (em-

phasis in original).

Howze was decided before the Supreme Court decided

Begay. In Begay, the Court held that, in order to be

classified as a violent felony, it is not sufficient that the

offense present a serious potential risk of physical injury

to another. Additionally, the offense must be “roughly

similar, in kind” to the enumerated offenses. Begay, 553

U.S. at 143. The listed offenses, the Court noted, “typically

involve purposeful, violent, and aggressive conduct”

such that it makes it “more likely that an offender, later

possessing a gun, will use that gun deliberately to harm a

victim.” Id. at 144-45 (internal quotation marks and cita-

tion omitted). The offense before the Court, driving under

the influence, did not require purposeful conduct, but

was instead more akin to a strict liability crime. Id. at 145.

16 No. 08-3108

DUI, therefore, did not show an increased likelihood

that the offender would point a gun and pull the trigger.

Id. at 146.

We applied the Begay framework to a fleeing statute

in United States v. Spells, 537 F.3d 743 (7th Cir. 2008). We

held that fleeing an officer in a vehicle constituted a

violent felony. Id. at 752. We held that the offense was

“purposeful,” because the statute required that it be

done “knowingly or intentionally.” Id. We also held that

flight in a vehicle was inherently “aggressive.” Id. “Taking

flight calls the officer to give chase, and aside from

any accompanying risk to pedestrians and other

motorists, such flight dares the officer to needlessly

endanger himself in pursuit.” Id.

After Spells, the Supreme Court decided Chambers.

There, the Court held that failure to report for penal

confinement is not a violent felony. Failure to report

does not present a serious risk of physical injury to an-

other, and it is “a form of inaction, a far cry from the

purposeful, violent, and aggressive conduct potentially

at issue when an offender uses explosives against

property, commits arson, burgles a dwelling or residence,

or engages in certain forms of extortion.” Chambers, 129

S. Ct. at 692 (internal quotation marks and citation omit-

ted). The Court also noted that “an individual who fails

to report would seem unlikely, not likely, to call atten-

tion to his whereabouts by simultaneously engaging in

additional violent and unlawful conduct.” Id. The Court

also specifically distinguished failure to report from

escape. Id. at 691.

No. 08-3108 17

After argument in the case now before us, we decided

United States v. Dismuke, 593 F.3d 582 (7th Cir. 2010). In

that case, we reconsidered whether the Wisconsin

statute at issue in Howze could qualify as a violent

felony in light of the Supreme Court’s decisions in Begay

and Chambers. Our focus was on a particular portion of

that statute: the offense of “increasing the speed of the

operator’s vehicle or extinguishing the lights of the

vehicle in an attempt to elude or flee.” Id. at 590 (brackets

omitted). We noted and reaffirmed, but did not rest upon,

the Spells decision. We held that the Wisconsin statute

required purposeful conduct because it required that the

crime be done intentionally. Id. at 592. We also held

that the conduct encompassed by the elements of the

statute was violent and aggressive because it was “charac-

terized by aggressive conduct with a similar potential

for violence and therefore injury as the enumerated

offenses.” Id. at 594. We found in Chambers an implica-

tion that an escape from physical custody would satisfy

Begay and cited several cases (including Spells) that ex-

plained how fleeing is a challenge to the officer’s authority

and is likely to result in a confrontation. Id. at 595.

Shortly after our decision in Dismuke, we decided

United States v. Sykes, ___ F.3d ___, No. 08-3624, 2010

WL 843861 (7th Cir. Mar. 12, 2010). That case involved

the same Indiana statute as the one at issue in Spells. The

defendant acknowledged our holding in Spells, but asked

that we abandon it. We declined the invitation and chose

instead to reaffirm explicitly Spells. We stated that “its

holding is good law and controls our case,” and we

noted the importance of stare decisis. Id. at *3.

18 No. 08-3108

2.

The Illinois statute under which Mr. Welch was con-

victed provides:

The offense of aggravated fleeing or attempting to

elude a peace officer is committed by any driver

or operator of a motor vehicle who flees or at-

tempts to elude a peace officer, after being given

a visual or audible signal by a peace officer in

the manner prescribed in subsection (a) of Section

11-204 of this Code, and such flight or attempt

to elude:

(1) is at a rate of speed at least 21 miles per

hour over the legal speed limit;

(2) causes bodily injury to any individual;

(3) causes damage in excess of $300 to prop-

erty; or

(4) involves disobedience of 2 or more official

traffic control devices.

625 ILCS 5/11-204.1(a).

Unlike the fleeing statutes at issue in Spells, Dismuke

or Sykes, this Illinois statute does not contain an explicit

intent term. Mr. Welch submits that, because of this

omission, the offense cannot satisfy the Begay standard.

Begay itself removed explicitly strict liability crimes

from the ACCA’s reach. United States v. McDonald, 592

F.3d 808, 814 (7th Cir. 2010). Indeed, Begay held that a

violent felony must involve “purposeful” conduct, and

we have held squarely that a crime with a mens rea

No. 08-3108 19

of recklessness cannot qualify as a violent felony

under the residual clause. United States v. Smith, 544

F.3d 781, 786 (7th Cir. 2008). Therefore, in order to

qualify as a violent felony, a crime must involve inten-

tional conduct.

We believe that the Illinois statute, although not

having an explicit requirement of intentional conduct,

does contain an implied requirement of intentional con-

duct. In Mei v. Ashcroft, 393 F.3d 737, 741-42 (7th Cir. 2004),

we considered whether this same Illinois statute was a

“crime of moral turpitude” for purposes of immigration

law. In that context, we found an implied intent require-

ment in the statute, reasoning that “[i]t would be unlikely

for the aggravated version of the offense to have dropped

the requirement of willfulness [when the unaggravated

version did contain such a requirement], though not

impossible.” Although Illinois cases provide little guid-

ance,11 we think Mei was correct for several reasons.

11

In People v. Brown, 839 N.E.2d 596, 600 (Ill. App. Ct. 2005), the

defendant contended that the evidence was insufficient to

support his conviction for aggravated fleeing, because the

State failed to prove that he drove 21 miles per hour over the

speed limit “after becoming aware of any visual or audible

signal to stop.” The police officer testified that the squad car

was marked and that its siren and lights were engaged. See id.

at 601 (“The inference is clear that he activated his emergency

lights and siren while pursuing defendant on Mackinaw.”).

The court held that this was sufficient to support the defen-

dant’s conviction, id. at 601, though it did not specify if

(continued...)

20 No. 08-3108

First, the statute does not punish a driver who “fails to

stop” for an officer, but rather one who “flees or attempts

to elude” an officer. While a “failure to stop” could be an

unintentional act, “fleeing” implies willfulness. As the

term is commonly used, “fleeing” implies something

more than continued motion; it implies a response to

some stimulus. The transitive form of the verb “flee” is

defined as “to run away from” or “shun.” Merriam-Web-

ster’s Collegiate Dictionary 445 (10th ed. 1998) (emphasis

added). This implication is even stronger where the

statute treats “fleeing” as the equivalent of “attempting

to elude,” for “attempt” is a specific intent crime. See

720 ILCS 5/8-4(a).

Moreover, speeding or driving through two stop signs

while being chased by an officer, with no intent to flee the

officer, is not the type of conduct that a statute about

“fleeing” is crafted to punish. Illinois has enacted other

provisions—traffic offenses—to punish running stop

signs or speeding. See 625 ILCS 5/11-305 (obedience to

traffic-control devices); 625 ILCS 5/11-601 (speeding).

These traffic offenses are not felonies, or even misde-

meanors, but rather are petty offenses.1 2 Illinois also

11

(...continued)

this evidence allowed the jury to infer that the defendant

was aware of the pursuing officer or if such awareness

was not required.

12

[U]nless otherwise declared in this Chapter with

respect to particular offenses, it is a petty offense

(continued...)

No. 08-3108 21

makes it a separate misdemeanor to drive 40 miles per

hour or more over the speed limit. 625 ILCS 5/11-601.5.

Given this comprehensive statutory scheme, we believe

it clear that the Illinois legislature did not intend to

make it a felony to drive 20 miles per hour over the speed

limit simply because a police officer happens to be in

pursuit, rather than because the driver was inten-

tionally evading that officer.

Similarly, Illinois has enacted no separate offense for

causing injury while operating a vehicle. An individual

who follows all rules of the road and drives carefully, but

nevertheless somehow causes injury, has ordinarily

committed no crime. We do not believe that the

legislature intended to make this conduct criminal—and

felonious, at that—unless the driver actually knew about

the pursuit by an officer and was trying to flee.

Mr. Welch suggests that “imposing strict liability is

common where the legislature’s overriding concern is

to protect the public from injury.” Reply Br. 2-3. Of course,

the inquiry cannot be that simple; nearly all criminal

statutes are intended to protect the public from injury.

We are mindful that “[t]he existence of a mens rea is

the rule of, rather than the exception to, the principles

of Anglo-American criminal jurisprudence.” Staples v.

United States, 511 U.S. 600, 605 (1994) (quotation marks

12

(...continued)

for any person to do any act forbidden or fail to

perform any Act required in this Chapter.

625 ILCS 5/11-202.

22 No. 08-3108

and citation omitted, brackets and italics in original).

When interpreting federal statutes, the Supreme Court

has dispensed with the mens rea requirement in a

narrow class of statutes that it has termed “public wel-

fare” statutes. Id. at 606. A key consideration in deter-

mining whether a statute falls within this class is

whether a person would be surprised to learn that the

conduct criminalized is not an innocent act. Id. at 610;

see also Morissette v. United States, 342 U.S. 246, 260

(1952) (“In the interest of the larger good it puts the

burden of acting at hazard upon a person otherwise

innocent but standing in responsible relation to a

public danger.” (quotation marks and citation omitted)).

Illinois has gone a step further in taking the guess-work

out of the analysis. Its legislature has provided a statute

stating that the legislature must make its purpose clear

in order to create a strict liability crime punishable by

imprisonment.13

13

720 ILCS 5/4-9 provides:

A person may be guilty of an offense without having, as

to each element thereof, one of the mental states de-

scribed in Sections 4-4 through 4-7 if the offense is a

misdemeanor which is not punishable by incarceration

or by a fine exceeding $500, or the statute defining the

offense clearly indicates a legislative purpose to impose

absolute liability for the conduct described.

Driving under the influence, likened to a strict

liability crime in Begay v. United States, 553 U.S. 137, 145

(2008), evinces such a clear purpose because of a sub-

(continued...)

No. 08-3108 23

Traffic offenses have been held to be prime candidates

for strict liability because such offenses:

[r]esult in no direct or immediate injury to person

or property but merely create the danger or proba-

bility of it which the law seeks to minimize. While

such offenses do not threaten the security of the

state in the manner of treason, they may be re-

garded as offenses against its authority, for their

occurrence impairs the efficiency of controls

deemed essential to the social order as presently

constituted. In this respect, whatever the intent

of the violator, the injury is the same, and the

consequences are injurious or not according to

fortuity. Hence, legislation applicable to such

offenses, as a matter of policy, does not specify

intent as a necessary element.

People v. Teschner, 394 N.E.2d 893, 894-95 (Ill. App. Ct. 1979)

(quoting Morissette, 342 U.S. at 256) (brackets in original).

We must acknowledge that traffic offenses generally

are considered public welfare offenses, see id. at 895, and

that the offense at issue here is situated physically in

the Illinois Vehicle Code. Nevertheless, these factors

13

(...continued)

section of the statute that specifically precludes a

defense that use of the drug in question was lawful.

People v. Teschner, 394 N.E.2d 893, 895 (Ill. App. Ct.

1979). For the reasons stated in the text, we do not see

a clear intent to make aggravated fleeing a strict lia-

bility crime.

24 No. 08-3108

cannot control whether the offense requires a criminal

intent. The statute in question simply does not meet the

requirements imposed by the Illinois legislature before

the usual requirement of a criminal intent can be con-

sidered absent. There is certainly no specific indication

by the Illinois legislature that an intent requirement is

absent. Indeed, the entire statutory scheme indicates the

opposite. First, the non-aggravated form of the same

offense requires a criminal intent. It indeed would be

unusual for the legislature to require a specific intent to

punish the less serious degree of the violation, while

making the more serious violation an absolute liability

offense.14

14

We cannot accept Mr. Welch’s argument that Dean v. United

States, ___ U.S. ___, 129 S. Ct. 1849 (2009), requires a different

view. There, the Supreme Court declined to find an implied

mens rea requirement in a statute criminalizing discharge of a

firearm during a crime of violence. Mr. Welch notes that one

consideration relied on by the Court was that the statute also

criminalized the brandishing of a firearm during a crime of

violence, and “brandish[ing]” was a defined term; the statute

required that it be done “in order to intimidate” someone. Id.

at 1853. Thus, the “brandish” provision had an intent require-

ment that suggested the absence of an intent requirement

from the “discharge” provision to be intentional. Id. at 1854.

Similarly here, Mr. Welch argues, the offense of unaggravated

fleeing contains an intent term—“willfully”—while the aggra-

vated offense does not. Therefore, Mr. Welch contends, the

omission of an intent term from the aggravated offense must

have been intentional.

(continued...)

No. 08-3108 25

14

(...continued)

We note first that this consideration was just one among

many for the Court. In Dean, the statute’s use of the passive

voice also indicated that proof of intent was not required, id.

at 1853, and the presumption that proof of criminal intent is

required was not a factor in the case because, although “[i]t is

unusual to impose criminal punishment for the consequences

of purely accidental conduct,” “it is not unusual to punish

individuals for the unintended consequences of their unlawful

acts,” such as committing a robbery with a loaded gun, id. at

1855 (emphasis in original). Neither of these considerations

are relevant to the Illinois statute.

Additionally, the term “brandish” appeared in subsection (ii)

of the Dean statute (“if the firearm is brandished, be sentenced

to a term of imprisonment of not less than 7 years”), while

“discharge” appeared in subsection (iii) (“if the firearm is

discharged, be sentenced to a term of imprisonment of not less

than 10 years”). Id. at 1853 (citation omitted). The Court noted

that the subsections “explain how defendants are to be sen-

tenced” for the complete offense of using a firearm in relation

to a crime of violence or a drug trafficking crime. Id. (quota-

tion marks and citation omitted). The Illinois offenses of

aggravated and unaggravated fleeing, however, do not have

the same conceptual or structural relationship. They define two

separate offenses. The unaggravated offense appears in

Section 11-204 of the Illinois Vehicle Code and is a class A

misdemeanor; the aggravated offense appears in Section 11-

204.1 and is a class 4 felony.

Even without assistance from Dean, Mr. Welch may con-

tend that the omission of an explicit intent term from the

aggravated offense was intentional in light of the unaggravated

(continued...)

26 No. 08-3108

Secondly, deeming aggravated fleeing an absolute

liability offense would be incongruous with the general

scheme that Illinois has crafted to regulate driving a

motor vehicle within the state. Notably, the penalty for

aggravated fleeing is much more severe than for a

typical traffic offense. Even DUI is only a Class A misde-

meanor for the first two offenses, punishable by a maxi-

mum of one year in prison. 625 ILCS 5/11-501(c)(1),

(d)(1)(A), (d)(2)(A), 730 ILCS 5/5-4.5/55. Moreover, and

perhaps most importantly, the injury caused by ag-

gravated fleeing is simply not the same without intent:

Aggravated fleeing punishes, in part, the defiance of

police authority. If the driver is unaware of the officer

and not acting with an intent to flee, there is no defiance

to punish.

14

(...continued)

offense. However, the unaggravated and the aggravated offense

are not structured in the same way. The unaggravated offense

punishes one who:

wilfully fails or refuses to obey such direction [to stop],

increases his speed, extinguishes his lights, or other-

wise flees or attempts to elude the officer. . . .

625 ILCS 5/11-204.

The most natural reading of this provision is that “willfully”

modifies the first three clauses, all of which are forms of

“flee[ing] or attempt[ing] to elude the officer.” After all, in-

creasing speed and extinguishing lights are easily done unin-

tentionally. Because some drivers are quite inattentive, basic

failure to stop is also conceivably done unintentionally. Intent

turns these acts into something else: flight.

No. 08-3108 27

We recognize that some state statutes refer to “willful

fleeing.” See, e.g., Cal. Vehicle Code § 2800.1(a) (“Any

person who, while operating a motor vehicle and with

the intent to evade, willfully flees . . . .”); Idaho Code

Ann. § 49-1404(1) (“Any driver of a motor vehicle

who wilfully flees or attempts to elude a pursuing police

vehicle . . . .”). But given the common meaning of “flee,”

the presence of other Illinois statutes, and the general

presumption against strict liability crimes, we do not see

a clear intent on the part of the Illinois legislature to

impose strict liability.

Therefore, we conclude that the Illinois statute requires

purposeful conduct.1 5

3.

Having concluded that the Illinois statute requires

purposeful conduct, we now address whether the

conduct proscribed by the statute is violent and aggres-

sive as those terms are employed in the Supreme

Court’s recent interpretations of the ACCA. We begin

our inquiry by returning to the language of the statute.

15

In addition to the foregoing, the Government refers us to

the Illinois Pattern Jury Instructions, which indicate that

aggravated fleeing requires intent. Ill. Pattern Jury Instructions-

Crim. 23.03 (2000). These are not the law, however, and are

therefore entitled to little weight. See People v. Peete, 743 N.E.2d

689, 695 (Ill. App. Ct. 2001) (“Illinois pattern jury instructions

are not binding. [They] are used only when they accurately

state the law.”).

28 No. 08-3108

a.

The Illinois aggravated fleeing statute criminalizes

four distinct varieties of flight. In evaluating whether

this aggravated fleeing conduct is violent and aggressive,

our first task is to determine, if possible, the precise

offense with which we are concerned. Our approach to

this problem of divisibility was set out, in plenary

fashion, in United States v. Woods, 576 F.3d 400 (7th Cir.

2009); see also Shepard v. United States, 544 U.S. 13, 26

(2005). We must employ a categorical approach; we do

not look at the facts of the prior conviction. Rather, we

look only at the statutory definition of the crime. Woods,

576 F.3d at 403. In examining the elements of the crime,

we consider whether, in the ordinary case, they reflect a

violent felony. Id. at 404. When a statute may be violated

in several ways and only some of those ways constitute

a violent felony within the meaning of the ACCA, we

may consider a limited list of additional materials to

ascertain the precise branch of the statute which the

defendant violated: “the terms of the charging document,

the terms of a plea agreement or transcript of a colloquy

between judge and defendant . . . or to some comparable

judicial record of this information.” Id. at 404 (quotation

marks and citation omitted). This consultation is limited

to determining which branch of the statute the defendant

violated; it is not an examination of the defendant’s

conduct. Id. at 405.

The Illinois aggravated fleeing statute makes fleeing

from a police officer an aggravated offense if one of four

conditions are met. Those conditions are that the fleeing:

No. 08-3108 29

(1) is at a rate of speed at least 21 miles per hour

over the legal speed limit;

(2) causes bodily injury to any individual;

(3) causes damage in excess of $300 to property; or

(4) involves disobedience of 2 or more official traf-

fic control devices.

625 ILCS 5/11-204.1(a). In light of the principles that we

have set forth, this statutory scheme would appear, at

least on first reading, to present a difficult problem. The

record does not contain the state court papers pertaining

to the aggravated vehicular fleeing conviction. It does

contain a description of the offense in the PSR, but that

description is based on arrest reports. Arrest reports are

not authorized sources for divisibility purposes. Shepard,

544 U.S. at 16 (holding that a police report cannot be

considered to determine whether generic burglary was

committed). They cannot be made a permissible source

because they are referenced in a PSR. See United States v.

Hays, 526 F.3d 674, 678 (10th Cir. 2008); United States v.

Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2002) (en

banc). Therefore, under the circumstances here, we

must determine that all four branches constitute violent

felonies under Begay in order to conclude that ag-

gravated fleeing is a violent felony.

When we examine each of the branches, we note at the

outset that they fall into two subcategories. Branch one

(rate of speed at least 21 miles per hour over the legal

speed limit) and branch four (disobedience of two

or more traffic signals) describe the manner of the defen-

30 No. 08-3108

dant’s flight. On the other hand, branch two (causes

bodily injury to any individual) and branch three (causes

damage in excess of $300 to property) describe the

effect of the flight.

If the violent nature of the felony turned solely on

these factors, we might have significant difficulty in

categorizing the offense of aggravated fleeing as violent

and aggressive, as Begay and Chambers define those

terms. Branches one and four are the easier of the two

categories to reconcile with Begay and Chambers, but

even these are problematic. Fleeing at a pace well over the

speed limit or running through traffic signals reasonably

may be characterized as violent and aggressive acts,

comparable to brandishing a deadly weapon. They dem-

onstrate, it might be argued, a level of indifference to

human safety above and beyond the basic act of fleeing

and, in that respect, simply constitute specific, objective

examples of action that creates a substantial risk of

serious physical injury or death to any person.1 6 On the

other hand, under Illinois law, exceeding the speed limit

by 40 miles per hour is a misdemeanor;1 7 reckless

driving, which requires “willful or wanton disregard for

the safety of persons or property,” is a misdemeanor

16

See United States v. Hudson, 577 F.3d 883, 885 (8th Cir. 2009)

(holding that fleeing statute that prohibited fleeing in a manner

that “creates a substantial risk of serious physical injury or

death to any person” was a violent felony).

17

625 ILCS 5/11-601.5.

No. 08-3108 31

as well.18 Given these features of the Illinois code, it may

be difficult to maintain that exceeding the speed limit

by twenty miles an hour constitutes aggressive and

violent behavior.

Branches two and three speak to the results of the

flight, not its manner and are an even more problematic

basis for characterizing an offense as aggressive and

violent. While these results may indeed be the product

of aggressive and violent behavior, they can be the

results of other behavior as well. These results cannot be

considered an easy and identifiable proxy for the sort

of conduct that must form the basis of a violent felony

for purposes of the ACCA.

We believe, however, that there is another and more

appropriate approach to this Illinois statute that is more

in harmony with the intent of Congress in the ACCA

and with the interpretative decisions of the Supreme

Court. The Illinois statute before us, while requiring that

the conditions we have just described be met, also

requires, for all of these categories, that the defendant

intentionally flee a police officer after having been

signaled to stop. If this common underlying activity—the

very act of intentionally fleeing in defiance of the

officer’s command—constitutes an aggressive and violent

act, the crime is an aggressive and violent one, no matter

which of the categories we have discussed is also ap-

plicable. Indeed, those categories are, under this analytical

approach, simply limitations on the operation of the

18

625 ILCS 5/11-503.

32 No. 08-3108

statute that make it applicable only to certain intentional

flights from a police officer. However, if all intentional

flights against the orders of an officer are aggressive

and violent, those limitations are not relevant to our

inquiry under the ACCA.

b.

We turn then to an analysis of whether all intentional

flights against the order of a police officer are aggressive

and violent as those terms are employed in an analysis

of the ACCA.

This is not the first time that we have examined

whether intentional flight in defiance of a police officer’s

order is an aggressive and violent act. This question

was before us in Spells. In that case, we held that an

Indiana vehicular fleeing statute qualified as a violent

felony under the Begay framework. The Indiana statute

required that the offender “knowingly . . . flee[] from

the law enforcement officer after the officer has . . .

ordered the person to stop.” Spells, 537 F.3d at 749 (citation

omitted).

Our task therefore is to ascertain whether our decision

in Spells remains viable after the Supreme Court’s decision

in Chambers. An examination of Chambers makes clear

that it leaves Spells undisturbed. Chambers held that the

offense of failure to report to confinement is not a

violent felony. The other federal courts have extended

Chambers to cover a “walkaway” escape, where a prisoner

No. 08-3108 33

leaves unsecured custody such as a halfway house.1 9

Numerous courts have reaffirmed, however, that an

escape from secure custody is not analogous to failure to

report and, therefore, is not covered by Chambers. For

instance, the First Circuit held that “escape from secure

custody is a stealth crime that is likely to cause an

eruption of violence if and when it is detected. Therefore,

the ‘powder keg’ rationale still applies to such a crime.”

United States v. Pratt, 568 F.3d 11, 22 (1st Cir. 2009). The

Eighth Circuit has agreed. United States v. Pearson, 553

F.3d 1183, 1186 (8th Cir. 2009) (“Accordingly, Chambers

overrules this circuit’s precedent that all escapes—in-

cluding failures to return or report to custody—are

crimes of violence, but leaves intact our precedent

19

See United States v. Ford, 560 F.3d 420, 426 (6th Cir. 2009)

(“Ford committed a ‘walkaway’ escape, which no doubt may

create a greater risk of physical injury than a failure to report,

but which remains different from a jailbreak and other crimes

of violence both in kind and in its risk of physical injury to

others.”); United States v. Pappan, No. 07-8020, 2009 WL 489963,

at *4 (10th Cir. Feb. 27, 2009) (holding that escape statute is not

a violent felony where it can be violated if defendant signed

out of corrections facility for purpose of attending work but

failed to attend work); United States v. Lee, 586 F.3d 859, 874

(11th Cir. 2009) (“In sum, we hold that a non-violent walkaway

escape from unsecured custody is not [a violent felony].”);

United States v. Charles, 667 F. Supp. 2d 1246, 1258-59 (D. Kan.

2009) (treating walkaway escape as escape from non-secure

custody, and finding it not to be a crime of violence).

34 No. 08-3108

holding that escape from custody is a crime of violence.”).2 0

We also employed this rationale in Dismuke when we

stated: “Chambers implies that unlike a failure to report,

which does not have these characteristics [aggressive

conduct with potential for violence], an escape from

physical custody would [qualify as a violent felony].”

Dismuke, 593 F.3d at 595; see also Sykes, 2010 WL 843861,

at *3 (stating that Spells’s “reasoning has been im-

plicitly affirmed in Chambers”).

The conclusion that Chambers did not disturb our

holding in Spells is supported by the language of

Chambers, which explicitly distinguished failure to

report from escape from confinement. Chambers, 129 S. Ct.

at 691. Vehicular fleeing, the offense at issue here, is much

more similar to the latter. While failure to report is a

passive crime characterized by inaction, id. at 692, vehicu-

lar fleeing necessarily involves affirmative action on the

part of the perpetrator. As the Court pointed out, one

20

Also, since Chambers, the Fifth and Sixth Circuits have held

that fleeing by vehicle is a violent felony. United States v.

Harrimon, 568 F.3d 531, 534-35 (5th Cir. 2009); United States v.

Young, 580 F.3d 373, 377-78 (6th Cir. 2009). The Tenth Circuit

has reaffirmed an earlier decision to the same effect. United

States v. Wise, ___ F.3d ___, No. 08-4033, 2010 WL 775556, at *5-*6

(10th Cir. Mar. 9, 2010). The Eleventh Circuit, after Chambers,

has found aggravated fleeing to be a violent felony. United

States v. Harris, 586 F.3d 1283, 1288-89 (11th Cir. 2009). But

see United States v. Harrison, 558 F.3d 1280, 1296-98 (11th Cir.

2009) (relying in part on Chambers to hold that unaggravated

vehicular fleeing offense is not a violent felony).

No. 08-3108 35

who fails to report is not drawing attention to himself.

Id. Similarly, a walkaway can occur without being

detected until later. If an offender fails to report or

leaves while beyond the presence of security, there is no

immediate pursuit or other attempt to apprehend and

none of the risks attendant with an immediate pursuit.

By contrast, one who flees a police officer in a vehicle

draws attention to himself, challenges the immediate

authority of the police officer and calls on the officer to

give immediate chase. Whether the officer accepts that

invitation, the perpetrator takes action to elude capture

with his vehicle, action that, by its very nature, endangers

others. Indeed, Mr. Welch has emphasized that he does

not contest the risk of physical harm posed by vehicular

fleeing. Reply Br. 2 (“Welch has not argued that ag-

gravated fleeing does not present a serious potential risk

of injury to others.”).

Spells must be read, moreover, in light of our decision in

Dismuke. There, instead of simply relying on Spells, we

considered anew the application of Begay to vehicular

fleeing statutes. We specifically held “that the ‘violent and

aggressive’ limitation requires only that a residual-clause

predicate crime be characterized by aggressive conduct

with a similar potential for violence and therefore injury

as the enumerated offenses.” Dismuke, 593 F.3d at 594. We

understood Chambers as supporting this holding. Id. at 595.

We noted as well that, in Howze, we had held that vehicular

fleeing categorically posed a serious risk of physical

injury. Indeed, we reaffirmed that vehicular fleeing

presents a serious risk of physical injury to another. Id.

at 591 n.3. Spells’s holding that vehicular fleeing is aggres-

36 No. 08-3108

sive conduct is not only undisturbed but reaffirmed by

Dismuke. The same must be said of its holding that:

An individual’s purposeful decision to flee an

officer in a vehicle when told to stop, reflects that

if that same individual were in possession of a

firearm and asked to stop by police, [he] would

have a greater propensity to use that firearm in

an effort to evade arrest.

Spells, 537 F.3d at 752.

Spells, Dismuke and Sykes make clear that we stand with

the majority of circuits that have held that intentional

vehicular fleeing is a violent felony within the meaning

of the ACCA.21 Accordingly, we hold that the district

court correctly considered the defendant’s conviction for

aggravated vehicular fleeing a violent felony for pur-

poses of the ACCA.

C.

Mr. Welch submits that he received ineffective

assistance of counsel, at sentencing and on appeal, when

counsel failed to argue that, under Apprendi v. New Jersey,

530 U.S. 466 (2000), Mr. Welch’s prior nonjury juvenile

adjudication could not be used to enhance his sentence

21

See Wise, 2010 WL 775556, at *6; Young, 580 F.3d at 377-78;

Harrimon, 568 F.3d at 534-35; United States v. West, 550 F.3d

952, 971 (10th Cir. 2008). But see United States v. Tyler, 580 F.3d

722, 726 (8th Cir. 2009); Harrison, 558 F.3d at 1295.

No. 08-3108 37

beyond the statutory maximum. To succeed on this

claim, Mr. Welch must demonstrate that (1) counsel’s

performance was below an objective standard of reason-

ableness, and (2) but for the deficiency, there is a rea-

sonable probability that the outcome would have been

different. Strickland v. Washington, 466 U.S. 668, 688, 694

(1984). Because Mr. Welch must satisfy both prongs

in order to prevail, we need not reach the deficiency

inquiry because Mr. Welch has failed to establish prejudice.

Initially, the Government argues that Mr. Welch

suffered no prejudice from his counsel’s failure to raise

the issue at sentencing because Mr. Welch raised the

issue pro se. As a result, “[t]he district court carefully

considered the claim but ultimately rejected it.” Govern-

ment’s Br. 22. We cannot accept this argument. In his

written objections, Mr. Welch preserved the issue of

whether Almendarez-Torres v. United States, 523 U.S. 224

(1998), was correctly decided. Additionally, he asked

the court to “please consider that at the age of 16 I was

young and remiss[].” R.18 at 4. At the sentencing

hearing, the court understood Mr. Welch to be arguing

that it had discretion to decline to consider the juvenile

offense and that the offense did not meet the statutory

definition of violent felony; Mr. Welch confirmed this.

There was no specific Apprendi argument with respect

to the juvenile offense. We cannot say, therefore, that the

district court confronted squarely the issue that

Mr. Welch now raises.

In order to show Strickland prejudice, Mr. Welch must

show a reasonable probability that his underlying ar-

38 No. 08-3108

gument would have been accepted at the sentencing

hearing. Strictly speaking, this standard does not

require that we actually decide the merits of the under-

lying issue. However, in the context of this specific

issue, considerations of judicial economy counsel that

we address the underlying issue and decide it.

In Apprendi, the Supreme Court held that “[o]ther than

the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” 530 U.S. at 490. Mr. Welch

contends that his prior juvenile adjudication, which was

not obtained by a jury, is not a “prior conviction” for

Apprendi purposes.2 2

The majority of circuits that have examined the

question of whether the absence of a jury trial prevents

the use of a juvenile adjudication to enhance a sentence

under the ACCA have concluded that there is no such

barrier.23 After studying the opinions of the circuits

that have addressed the matter, we join the majority.

When the Supreme Court carved out of its holding in

Apprendi an exception allowing for the use of prior con-

22

Mr. Welch pleaded guilty to his federal offense of conviction.

Because his juvenile adjudication was not charged in the

indictment, however, it may not be used to enhance his sentence

if it is subject to the Apprendi rule. Apprendi v. New Jersey,

530 U.S. 466, 476 (2000).

23

The ACCA explicitly permits the use of otherwise quali-

fying juvenile convictions to enhance sentences.

No. 08-3108 39

victions, the Court believed that the procedural safe-

guards surrounding such a conviction gave it sufficient

reliability that further protections were not required.

Specifically, the Court relied upon the “certainty that

procedural safeguards attached to any ‘fact’ of prior

conviction . . . mitigated the due process and Sixth Amend-

ment concerns otherwise implicated in allowing a judge

to determine a ‘fact’ increasing punishment beyond the

maximum statutory range.” Id. at 488. The Court further

said that:

there is a vast difference between accepting the

validity of a prior judgment of conviction entered

in a proceeding in which the defendant had the

right to a jury trial and the right to require the

prosecutor to prove guilt beyond a reasonable

doubt, and allowing the judge to find the required

fact under a lesser standard of proof.

Id. at 496.

Our colleagues in the Ninth Circuit were the first to

address whether the Supreme Court’s discussion in

Apprendi barred the use of any juvenile adjudication to

enhance a sentence under the ACCA. See United States v.

Tighe, 266 F.3d 1187 (9th Cir. 2001). A majority of the panel

took the view that the Supreme Court intended to bar

the use of such juvenile adjudications. In reaching its

conclusion, the Ninth Circuit found particularly con-

vincing a passage in the Supreme Court’s opinion in

Jones v. United States, 526 U.S. 227 (1999):

“One basis for that constitutional distinctiveness [of

prior convictions] is not hard to see: unlike virtually

40 No. 08-3108

any other consideration used to enlarge the possible

penalty for an offense . . . a prior conviction must itself

have been established through procedures satisfying the

fair notice, reasonable doubt and jury trial guarantees.”

Tighe, 266 F.3d at 1193 (quoting Jones, 526 U.S. at 249)

(brackets and emphasis in Tighe). The Ninth Circuit

concluded that the use of prior convictions to enhance a

sentence “was rooted in the concept that prior convic-

tions have been, by their very nature, subject to the funda-

mental triumvirate of procedural protections intended

to guarantee the reliability of criminal convictions: fair

notice, reasonable doubt and the right to a jury trial.” Id.

The Ninth Circuit also found guidance in the passage

from Apprendi that we have previously quoted:

“There is a vast difference between accepting the

validity of a prior judgment of conviction entered in a

proceeding in which the defendant had the right to a

jury trial and the right to require the prosecutor to

prove guilt beyond a reasonable doubt, and allowing

the judge to find the required fact under a lesser

standard of proof.”

Id. at 1194 (quoting Apprendi, 530 U.S. at 496).

Thus, the court concluded that “Apprendi’s . . . ‘prior

conviction’ exception is limited to prior convictions

resulting from proceedings that afforded the procedural

necessities of a jury trial and proof beyond a reasonable

doubt.” Id. Recognizing that juvenile adjudications

did not typically result from a jury trial, they were ex-

cluded.

No. 08-3108 41

The dissenting judge in Tighe took another view. For

the dissent, the language from Jones meant only that

“Congress has the constitutional power to treat prior

convictions as sentencing factors subject to a lesser stan-

dard of proof because the defendant presumably

received all the process that was due when he was con-

victed of the predicate crime.” United States v. Tighe,

266 F.3d 1187, 1200 (9th Cir. 2001) (Brunetti, J., dissenting).

The dissent reasoned that “where a juvenile received all

the process constitutionally due at the delinquency pro-

ceeding stage,” the resulting adjudication could be

used to justify an enhancement because “[t]o hold other-

wise would have required the court ‘to hold that the

enhancement of an adult criminal sentence requires a

higher level of due process protection than the imposition

of a juvenile sentence.’ ” Id. at 1198-99 (citation omitted).

With the benefit of the dialogue initiated by the thought-

ful writings in Tighe, our colleagues in many other

circuits have had subsequent opportunities to analyze

this issue. As we have noted previously, they have

found the dissenting position in Tighe to be more con-

vincing and, along the way, have refined the rationale

supporting that position. For instance, the Court of Ap-

peals for the Eighth Circuit expressed doubt that the

Supreme Court in Apprendi intended to establish a rigid

prerequisite for the definition of the sort of judgment of

conviction that would qualify for the exception to its

holding. The Eighth Circuit noted that “while the Court

established what constitutes sufficient procedural safe-

guards (a right to jury trial and proof beyond a rea-

42 No. 08-3108

sonable doubt), and what does not (judge-made findings

under a lesser standard of proof), the Court did not take

a position on possibilities that lie in between these two

poles.” United States v. Smalley, 294 F.3d 1030, 1032 (8th Cir.

2002). The Eighth Circuit did not interpret the Jones

passage as establishing a rigid definition of “prior con-

viction.” Id. Rather, the Eighth Circuit believed that

the proper inquiry was the overall reliability of a con-

viction—“whether juvenile adjudications, like adult

convictions, are so reliable that due process of law is not

offended by such an exemption.” Id. at 1033. The court

concluded that juvenile adjudications qualified for an

exemption from the Apprendi rule because defendants

in those proceedings have the right to notice, the right

to counsel, the right to confront witnesses, the right to

proof beyond a reasonable doubt and the privilege

against self-incrimination. Id. In its view, the use of a

jury “would ‘not strengthen greatly, if at all, the fact-

finding function.’ ” Id. (quoting McKeiver v. Pennsylvania,

403 U.S. 528, 547 (1971) (plurality opinion)).

In the wake of Smalley, several other circuits have

followed the same theme.2 4 The Fourth Circuit, for in-

stance, refused to say that the fact-finding process in

24

State courts have followed United States v. Smalley, 294 F.3d

1030 (8th Cir. 2002), as well. See State v. Weber, 149 P.3d 646, 653

(Wash. 2006); State v. McFee, 721 N.W.2d 607, 619 (Minn. 2006);

Ryle v. State, 842 N.E.2d 320, 323 (Ind. 2005); State v. Hitt, 42 P.3d

732, 740 (Kan. 2002). But see State v. Harris, 118 P.3d 236, 246 (Or.

2005); State v. Brown, 879 So.2d 1276, 1290 (La. 2004).

No. 08-3108 43

a judge-imposed juvenile adjudication was so suspect

that it could not be considered reliable when employed

to enhance a later criminal sentence. See United States v.

Wright, 594 F.3d 259, 264 (4th Cir. 2010). If a judge-

imposed juvenile adjudication is considered to be a con-

stitutionally sufficient basis for depriving a juvenile of

his liberty for a significant period of time, reasoned the

court, there is no need to consider that adjudication

“off limits for sentencing consideration if the same

juvenile later violates § 924(e)’s armed career criminal

prohibition.” Id. “As a jury is not required in a juvenile

adjudication on the merits, we see no reason to

impose such a requirement through the back door by

allowing former juveniles who have subsequently

reached adulthood to overturn their adjudications in

subsequent sentencing hearings.” Id. at 263-64; see also

United States v. Crowell, 493 F.3d 744, 750 (6th Cir. 2007)

(“Juvenile adjudications, where the defendant has the

right to notice, the right to counsel, the privilege

against self-incrimination, the right to confront and cross-

examine witnesses, and the right to a finding of guilt

beyond a reasonable doubt, provide sufficient pro-

cedural safeguards to satisfy the reliability require-

ment that is at the heart of Apprendi.”). This same

rationale found acceptance in the Third and Eleventh

Circuits. See United States v. Jones, 332 F.3d 688, 696 (3d Cir.

2003) (“It follows that if Lester Jones was afforded all

the procedural safeguards that he is constitutionally

due, the District Court properly enhanced his sentence

pursuant to the ACCA.”); United States v. Burge, 407

F.3d 1183, 1190 (11th Cir. 2005) (“We base our holding

44 No. 08-3108

on the reasoning of our sister circuits in Smalley and

Jones.”).25

We agree with these circuits that a prior juvenile adjudi-

cation is a “prior conviction” under Apprendi. We do not

believe Apprendi or Jones signals the Supreme Court’s

distrust of the factual integrity of juvenile adjudications

that conform to the constitutional requirements for

such proceedings. See McKeiver, 403 U.S. at 528; In re

Winship, 397 U.S. 358 (1970); In re Gault, 387 U.S. 1 (1967).

In this respect, we note that the Court in Apprendi stated:

If a defendant faces punishment beyond that

provided by statute when an offense is committed

under certain circumstances but not others, it is

obvious that both the loss of liberty and the stigma

attaching to the offense are heightened; it necessar-

ily follows that the defendant should not—at the

moment the State is put to proof of those circum-

stances—be deprived of protections that have,

until that point, unquestionably attached.

530 U.S. at 484. We believe that this passage is best read

as requiring that a defendant must receive all the

protections to which he is entitled. Prior convictions

are not subject to the Apprendi rule if the defendant re-

ceived all the protections to which he was constitu-

25

The First Circuit also has permitted the use of juvenile

adjudications to enhance a sentence, but that case does not

inform our inquiry because it confronted a situation where

state law provided juveniles with the right to a jury trial. United

States v. Matthews, 498 F.3d 25, 35 (1st Cir. 2007).

No. 08-3108 45

tionally entitled, and the integrity of the fact-finding

procedures are thereby ensured. There can be no doubt

that the Supreme Court’s jurisprudence has been vigilant

with respect to the fact-finding processes of juvenile

proceedings. “The same considerations that demand

extreme caution in factfinding to protect the innocent

adult apply as well to the innocent child.” Winship, 397

U.S. at 365. Nevertheless, although emphasizing that a

“proceeding where the issue is whether the child will be

found to be ‘delinquent’ and subjected to the loss of his

liberty for years is comparable in seriousness to a felony

prosecution,” Gault, 387 U.S. at 36, the Supreme Court

clearly has held that juvenile adjudications meet con-

stitutional standards even when they do not include a

jury trial, McKeiver, 403 U.S. at 545-47. We agree with

other circuits that the protections juvenile defendants

receive—notice, counsel, confrontation and proof beyond

a reasonable doubt—ensure that the proceedings are

reliable.

Therefore, because juvenile adjudications are reliable,

they are not subject to the Apprendi rule. Because

Mr. Welch’s juvenile conviction was admissible to

enhance his sentence under the ACCA, he was not preju-

diced by the failure of his attorney to argue the con-

trary. Accordingly, his ineffective assistance of counsel

claim must fail.

Conclusion

Mr. Welch’s prior conviction for the Illinois offense

of aggravated fleeing or attempting to elude a police

46 No. 08-3108

officer was properly treated as a “violent felony” under

the ACCA, as was his prior juvenile adjudication. His

sentence therefore was imposed in accordance with

governing legal principles, and the judgment is ac-

cordingly affirmed.

A FFIRMED

P OSNER, Circuit Judge, dissenting. The defendant

pleaded guilty to a charge of illegal possession of a gun

by a felon, in violation of 18 U.S.C. § 922(g)(1), for

which the maximum prison sentence ordinarily would

have been 120 months. 18 U.S.C. § 924(a)(2). But the

judge, because he found that the defendant had prior

convictions for three “violent felonies,” was required by

the Armed Career Criminal Act to impose a sentence of at

least 15 years, 18 U.S.C. § 924(e)(1), and did so. We af-

firmed in an unpublished order. United States v. Welch,

No. 06-3385 (7th Cir. Feb. 21, 2007). The following year

the defendant moved to vacate his sentence under

28 U.S.C. § 2255. One ground of his motion was that

his lawyer had rendered ineffective assistance to him

in failing to challenge the use of two of the “violent

felony” convictions—a juvenile conviction and a convic-

tion for “aggravated fleeing”—to increase his sentence.

No. 08-3108 47

There is no doubt that the lawyer was ineffective in

failing on appeal to challenge the use of the juvenile

conviction. That was a substantial issue, which had never

been resolved by this court, while the only other issue

he raised on appeal related to drug testing in the period

of supervised release that will follow the defendant’s

release from prison, an issue of little consequence in view

of the length of his sentence. My colleagues have elided

the issue of ineffective assistance by addressing the

merits of the challenge to the use of the juvenile convic-

tion and holding that the challenge fails, so that the

defendant wasn’t harmed by the lawyer’s inadequacy.

And the government concedes that the status of aggra-

vated fleeing under the Armed Career Criminal Act is

independently reviewable under 28 U.S.C. § 2255(f)(3)

in light of the Supreme Court’s decision in Begay v.

United States, 553 U.S. 137 (2008), because, as a result of

that decision, there is “a significant risk that [the] defen-

dant . . . faces a punishment that the law cannot impose

upon him.” Schriro v. Summerlin, 542 U.S. 348, 352 (2004).

I don’t think that either the juvenile conviction or the

conviction for aggravated fleeing was a conviction of a

“violent felony” within the meaning of the Armed Career

Criminal Act.

At age 16 the defendant was adjudged in an Illinois

juvenile court to have attempted an armed robbery. He

had no right to trial by jury. 705 ILCS 405/5-101(3);

People v. Taylor, 850 N.E.2d 134, 140 (Ill. 2006). The

Supreme Court had ruled in Apprendi v. New Jersey, 530

U.S. 466, 490 (2000), that “other than the fact of a prior

conviction, any fact that increases the penalty for a

48 No. 08-3108

crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a rea-

sonable doubt,” unless the defendant waived these

rights. See also Shepard v. United States, 544 U.S. 13, 24-26

(2005); United States v. Browning, 436 F.3d 780 (7th

Cir. 2006). An initial question is whether the judgment in

the defendant’s juvenile-court proceeding was a “prior

conviction” for Apprendi purposes. Technically it was not

a “conviction” at all, because in Illinois as in other states

a juvenile-court proceeding, though it often results in

a period of confinement (imprisonment by another

name), is not deemed a criminal proceeding. People v.

Taylor, supra, 850 N.E.2d at 141. And “because

delinquency proceedings are not criminal proceedings,

not all criminal safeguards have been employed in the

juvenile proceeding. For example, a minor has no right

to a jury trial, in part, because a jury trial would invest

a juvenile proceeding with the appearance and form of

a criminal trial.” In re R.G., 669 N.E.2d 1225, 1227 (Ill.

App. 1996). Obviously, though, such a proceeding is

more akin to a criminal proceeding than to a conven-

tional civil proceeding when the minor’s liberty is at

stake. See id. at 1227-28; see also State v. Bloomer, 909

N.E.2d 1254, 1266 (Ohio 2009). It is best described as

“quasi-criminal,” as in In re B.L.D., 113 S.W.3d 340,

351 (Tex. 2003).

The Supreme Court has held that no jury is required in

a juvenile case, even though the outcome of such a case

may well be imprisonment. McKeiver v. Pennsylvania, 403

U.S. 528 (1971). The Court noted the “idealistic” hope

that the rehabilitation of juvenile offenders would be

assisted by avoiding the criminal label and the crim-

No. 08-3108 49

inal courts, and while recognizing the failure of the move-

ment to live up to its ideals, the Court decided not

to terminate the experiment by requiring that all ele-

ments of criminal procedure be followed in juvenile

proceedings. Id. at 545-51 (plurality opinion).

But whether a juvenile can be imprisoned on the basis

of findings made by a juvenile-court judge rather than

by a jury is different from whether a “conviction” so

procured (if it should even be called a “conviction”) is the

kind of “prior conviction” to which the Court referred

in Apprendi, namely a conviction that can be used to jack

up a person’s sentence beyond what would otherwise

be the statutory maximum. The government doesn’t

even argue that it should be usable for this purpose;

its entire argument is that because all but one of the cir-

cuits to have opined on the issue deem a juvenile-

court “conviction” a “prior conviction” within the

meaning of Apprendi—compare United States v.

Crowell, 493 F.3d 744, 749-51 (6th Cir. 2007); United States

v. Burge, 407 F.3d 1183, 1187-91 (11th Cir. 2005); United

States v. Jones, 332 F.3d 688, 696 (3d Cir. 2003); and

United States v. Smalley, 294 F.3d 1030, 1031-33 (8th Cir.

2002); see also United States v. Matthews, 498 F.3d 25, 32-36

(1st Cir. 2007), with United States v. Tighe, 266 F.3d 1187,

1191-95 (9th Cir. 2001)—the failure of the defendant’s

lawyer to raise the issue didn’t hurt the defendant be-

cause we would be unlikely to reject the majority posi-

tion. That is a feeble argument, since our court does not

mechanically decide a case on the basis of the circuit score-

card, without independent consideration of the issues.

50 No. 08-3108

The sentence I quoted from Apprendi implies that a

prior conviction used to increase the length of the sen-

tence must be the outcome of a proceeding in which the

defendant had a right to have a jury determine his

guilt. Otherwise why does the Supreme Court require

that any fact, as distinct from a conviction, used to

enhance a sentence be a fact found by a jury (unless of

course the defendant waived a jury)? Why didn’t the

Court just say that the fact must be found by a reliable

means? Why in Jones v. United States, 526 U.S. 227, 249

(1999), decided the year before Apprendi, had the Court

said that “one basis for that constitutional distinctiveness

[of prior convictions] is [that] unlike virtually any

other consideration used to enlarge the possible penalty

for an offense . . . a prior conviction must itself have

been established through procedures satisfying the fair

notice, reasonable doubt and jury trial guarantees” (em-

phasis added)?

The Court in Apprendi did not take this back when

it said that “if a defendant faces punishment beyond

that provided by statute when an offense is committed

under certain circumstances but not others, it is obvious

that both the loss of liberty and the stigma attaching

to the offense are heightened; it necessarily follows that

the defendant should not—at the moment the State is

put to proof of those circumstances—be deprived of

protections that have, until that point, unquestionably at-

tached.” 530 U.S. at 484 (emphasis added). The defendant

in this case was not “deprived of protections” that had

attached to his juvenile-court proceeding. But that is not

enough. The Court in Apprendi, unwilling to overrule

No. 08-3108 51

Almendarez-Torres v. United States, 523 U.S. 224 (1998),

which permitted recidivist enhancements without re-

quiring a trial in the new case to determine the

defendant’s guilt of an offense used to enhance his sen-

tence, created a narrow exception to the requirement

that facts that increase the statutory maximum sen-

tence must be determined by a jury. The exception

requires that the defendant’s conviction of the prior

offense have been established by a process in which

he had had a right to a jury. The defendant in this

case didn’t have that right.

The constitutional protections to which juveniles have

been held to be entitled have been designed with a dif-

ferent set of objectives in mind than just recidivist en-

hancement. So the mere fact that a juvenile had all the

process he was entitled to doesn’t make his juvenile

conviction equivalent, for purposes of recidivist enhance-

ments, to adult convictions.

Suppose a military commission convicted a suspected

terrorist of a military crime, in a proceeding in which

the defendant had not been entitled to all the rights he

would have been entitled to in a conventional criminal

proceeding, such as the right to a jury. Would it follow

that because he had received all the rights to which

military law entitled him, his conviction could be used

to enhance a later conviction of a conventional crime?

To answer in the affirmative would stretch Apprendi

awfully far.

The Supreme Court’s opinion in McKeiver had acknowl-

edged that the juvenile courts are a mess, and subsequent

52 No. 08-3108

research confirms that their noncriminal “convictions”

may well lack the reliability of real convictions in

criminal courts. Steven A. Drizin & Greg Luloff, “Are

Juvenile Courts a Breeding Ground for Wrongful Con-

victions?” 34 N. Ky. L. Rev. 257 (2007); Barry C. Feld,

“The Constitutional Tension Between Apprendi and

McKeiver: Sentence Enhancements Based on Delinquency

Convictions and the Quality of Justice in Juvenile Courts,”

38 Wake Forest L. Rev. 1111, 1161-77 (2003); Martin

Guggenheim & Randy Hertz, “Reflections on Judges,

Juries, and Justice: Ensuring the Fairness of Juvenile

Delinquency Trials,” 33 Wake Forest L. Rev. 553, 564-

82 (1998); Bluhm Legal Clinic, “W hy Youth

Contributes to Wrongful Convictions,” http://cwcy.org/

WhyYouthContributes.aspx (visited Apr. 8, 2010). We

learn from this literature that lawyers in juvenile

courts are overloaded with cases, that they often fail to

meet with their clients before entering a guilty plea and

often rely on parents and on the child defendant

himself to contact witnesses, and that they rarely file

pretrial motions. And because the philosophy on which

the juvenile court system was founded emphasizes pro-

tecting the “best interests of the child” and rehabilitating

rather than punishing the child, the culture of the

juvenile courts discourages zealous adversarial advocacy

even though in its current form the juvenile justice

system is much more punitive than its founders envis-

aged. Lawyers also appear to be reluctant to appeal

juvenile cases and to seek postconviction relief; heavy

caseloads, a prevalent view that appeals undermine

the rehabilitation process, and an absence of awareness

No. 08-3108 53

among juveniles of their appeal rights are the likely

reasons for this reluctance.

Of particular relevance to Apprendi, the literature finds

that judges are more likely to convict in juvenile cases

than juries are. They are exposed to inadmissible

evidence; they hear the same stories from defendants

over and over again, leading them to treat defendants’

testimony with skepticism; they become chummy with

the police and apply a lower standard of scrutiny to the

testimony of officers whom they have come to trust;

and they make their decisions alone rather than as a

group and so their decisions lack the benefits of group

deliberation. It would be hasty to conclude that juvenile-

court judges are more prone to convict the innocent than

juries are. But if it is true that juvenile defendants fare

worse before judges than they would before juries—if

there is reason to think that trial by jury would alter

the outcomes in a nontrivial proportion of juvenile cases—

one cannot fob off the Apprendi argument with the ob-

servation that a jury makes no difference.

Only the Supreme Court can decide authoritatively

what its decisions mean. But the government’s inability

to give a reasoned basis for that position is telling, and

the better view, I believe, is that a juvenile court “convic-

tion” is not usable for enhancing a federal sentence.

As for the defendant’s second supposed “violent

felony”— “aggravated fleeing”—the other circuits are split

over its proper classification. Compare United States v.

Wise, 597 F.3d 1141, 1148 (10th Cir. 2010); United

54 No. 08-3108

States v. LaCasse, 567 F.3d 763, 765-67 (6th Cir. 2009); United

States v. Harrimon, 568 F.3d 531, 534-37 (5th Cir. 2009); see

also United States v. Hudson, 577 F.3d 883 (8th Cir. 2009),

holding that it is a violent felony, with United States v.

Harrison, 558 F.3d 1280, 1290-96 (11th Cir. 2009), and United

States v. Tyler, 580 F.3d 722, 724-26 (8th Cir. 2009), holding

that it is not; see also United States v. Rivers, 595 F.3d 558,

564-65 (4th Cir. 2010). (Tyler, which did not cite Hudson,

created a split within the Eighth Circuit.) Wise, Hudson,

and Tyler are applications of section 4B1.2 of the federal

sentencing guidelines rather than of the Armed Career

Criminal Act, but “crime of violence” in the guidelines

section is interpreted identically to “violent felony” in the

Act. United States v. Templeton, 543 F.3d 378, 380 (7th

Cir. 2008).

Our court has lined up with the courts that deem “ag-

gravated fleeing” a “violent felony” within the meaning

of the Armed Career Criminal Act. United States v.

Sykes, 598 F.3d 334, 335 (7th Cir. 2010); United States v.

Dismuke, 593 F.3d 582, 590-96 (7th Cir. 2010); United States

v. Spells, 537 F.3d 743, 747-53 (7th Cir. 2008). These deci-

sions are questionable in light of Chambers v. United

States, 129 S. Ct. 687 (2009), where the Supreme Court

held that the form of “escape” that consists merely of

failing to report to prison on schedule to begin serving

one’s sentence is not a “violent felony.” Neither is a

walkaway escape. See, e.g., United States v. Hart, 578 F.3d

674, 680-81 (7th Cir. 2009); United States v. Templeton, supra,

543 F.3d at 383; United States v. Lee, 586 F.3d 859, 868-74

(11th Cir. 2009); United States v. Hopkins, 577 F.3d 507, 512-

No. 08-3108 55

15 (3d Cir. 2009); United States v. Charles, 576 F.3d 1060,

1066-69 (10th Cir. 2009).

Typically the walkaway escapee begins his flight on

foot but soon switches to a vehicle, while in aggravated

fleeing a person disregards a signal or command from a

police officer in a police car to pull over. Sometimes he

flees at a dangerously high speed, but the offense in

Illinois requires only that in the course of flight he

disobey at least two “official traffic control devices.” 625

ILCS 5/11-204.1(a)(4). That includes not only red lights

and stop signs but also such less imperative traffic

control devices as signs that say “slow down,” “yield

right of way,” and “no right turn on red light between

7 a.m. and 7 p.m.”

Aggravated fleeing is more dangerous on average

than walkaway escapes or failures to report, but we

know from Begay v. United States, supra, that dangerous-

ness is not enough to render a crime a “violent felony.”

Begay involved driving under the influence of alcohol

or drugs, and the Court held that such conduct is not a

violent felony even though it is dangerous. Is aggravated

fleeing more dangerous? When it takes the form of

running a couple of stop signs, perhaps late at night

when there is no other traffic on the road, it may well

be less dangerous than the average DUI case. Who

knows? But in any event, Begay requires that the offense

not only create a danger comparable to the dangers

created by the offenses enumerated in the Armed

Career Criminal Act (arson, burglary, extortion, and use

of explosives to commit a crime) but also further

56 No. 08-3108

resemble them in involving “purposeful, violent, and

aggressive” conduct.

The test is difficult to apply. It is unclear what “aggres-

sive” adds to “violent” (the Court didn’t say), except in a

case of defensive use of force, which ordinarily is not

criminal at all, although it can be, as in a case in which a

person is unreasonable in believing (though it is an

honest belief) that he must use deadly force to defend

himself. It is not even clear what “purposeful” adds to

the definition of “violent felony” since even strict-

liability crimes are “purposeful” in the sense that a de-

liberate act is involved. Sex with an underage girl is a

crime even if the perpetrator thinks her of age, but the

sexual act itself is deliberate.

Thus I don’t agree that just because the defendant

intended to flee from the police his action was “pur-

poseful” within the meaning of the Supreme Court’s

formula. Given that the purpose of the catch-all provi-

sion in the Armed Career Criminal Act is to enable

courts to identify crimes that are similar to the

enumerated ones, “purposeful” should be interpreted to

mean trying to harm a person’s person or property,

which is characteristic of the enumerated crimes.

Burglary requires proof of intent to commit a crime

following unlawful entry, arson proof of intent to

destroy property without legal authority, extortion proof

of intent to obtain another person’s property by a threat.

These crimes do not merely create a risk of harm, as

aggravated fleeing does.

It’s not that the enumerated crimes necessarily are

motivated by a desire to hurt anyone. The criminal may

No. 08-3108 57

simply want the victim’s property. (In an arson case, the

victim is often an insurance company—and arsonists

don’t dislike insurance companies—rather the contrary!)

But to get what he wants he has to harm the victim;

purpose to harm is intrinsic to the crime although it

often is not the motive. That is not true in a flight

case any more than it is true in a DUI case. In both the

perpetrator is behaving in a dangerous manner but in

neither is he trying to take anything from anyone or

otherwise harm anyone. And “although the [fleeing]

statute does require intent, the required mental state is

only intent to be free of custody, not intent to injure or

threaten anyone. It is easy to violate [such a statute]

without intending or accomplishing the destruction of

property or acting in an aggressive, violence-provoking

manner that could jeopardize guards or bystanders.”

United States v. Templeton, supra, 543 F.3d at 383.

Dismuke calls aggravated fleeing “aggressive” because

it involves defiance of authority. 593 F.3d at 595. But that

is true of all escapes—the point of Chambers was that we

can’t treat all escapes alike. Dismuke calls fleeing “active”

rather than “passive,” id., but all actions are active, yet

most are not aggressive. To fail to report to prison when

ordered is to defy the authority of the sentencing judge

and the Bureau of Prisons. Many acts of civil disobedience

are emphatically active and defiant of authority at their

core, but are miles away from being aggressive. Dismuke

notes the possibility of a future confrontation with au-

thority but that is also a likely consequence of a walk-

away escape or a failure to report and is an especially

likely consequence of many acts of civil disobedience.

58 No. 08-3108

Adopting a rule that would exclude from the category

of “violent felony” a crime that while it may be

dangerous does not involve any intention of harming

anyone would go some distance toward clarifying the

meaning of “violent felony” and by doing so perhaps

check the avalanche of litigation over that meaning.

Echoing Dismuke, the majority opinion in the present

case tries to distinguish fleeing from an officer from a

walkaway escape or failure to report by describing each

of the latter offenses as a “passive crime characterized by

inaction,” which might not be detected or provoke an

immediate pursuit, in contrast to “vehicular fleeing

[which] necessarily involves affirmative action on the

part of the perpetrator” and “challenges the immediate

authority of the police officer and calls on the officer to

give immediate chase.” But both a walkaway escape and

a failure to report are challenges to authority; and while

the failure to report does involve “inaction” rather than

(affirmative) action, a walkaway escape does not. I don’t

understand what “immediate authority” means and

I disagree that the fleer “call[s] on the officer to give

immediate chase”; he would much prefer that the

officer not give chase and doubtless in some cases the

officer does not.

Only the Supreme Court can resolve the issues pre-

sented in this appeal. But pending the Court’s interven-

tion I am persuaded that the defendant’s sentence is

illegal.

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