United States v. Shawn D. Rutherford

EASTERBROOK, Circuit Judge,

concurring.

U.S.S.G. 4B1.2(1) treats as a crime of violence “any offense under federal or state law punishable by imprisonment for a term exceeding one year that” satisfies the criteria of subsection (i) or (ii). We therefore need to *378 inquire whether the “offense” satisfies the criteria. Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990), which dealt with parallel language in the Armed Career Criminal Act, 18 U.S.C. § 924 (e), concluded that a court should not look beyond the statutory elements — and, if these are open-ended, the charging papers. 495 U.S. at 600-02 , 110 S.Ct. at 2159-60 . This principle carries over to the Guidelines, which have an identical structure. Yet instead of asking whether the crime of which Rutherford was convicted — “assualt in the first degree” under Alabama law — is a “crime of violence,” my colleagues pose an irrelevant question: whether drunk driving is a crime of violence. The answer to the proper question is “yes,” so I join the court’s judgment but not its opinion.

Alabama Code § 13A-6-20(a)(5) provides that a person commits the crime of assault in the first degree if,

while driving under the influence of alcohol or a controlled substance or any combination thereof in violation of Section 32-5A-191 he causes serious bodily injury to the person of another with a motor vehicle.

This offense is distinct from drunk driving. Drunk driving is a lesser included offense of the crime that § 13A-6-20(a)(5) creates. We need to establish whether first-degree assault is a crime of violence, not whether its lesser included offense is such a crime.

Section 4B1.2(1) says that an “offense” qualifies as a crime of violence if it

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

These subsections establish that an offense is a “crime of violence” if injury occurs, is threatened, is attempted, or is likely. The first of these involves completed harm; the latter three involve probabilities of harm. Burglary, arson, extortion, and explosives are listed separately for the reasons detailed in Taylor : each is a type of crime that entails risk, and the Commission has dispensed with the need for judicial classification. (Burglars may surprise the residents, and so on.) When the Sentencing Commission has not classified an offense as high-risk, the court must determine whether it is as risky as the listed offenses.

First-degree assault as Alabama defines it fits within the first category (force against a person) rather than the fourth (risk of harm). Physical force is not incidental, or aimed at, or a hazard; it is an element of the offense. One car slams into another (or into a pedestrian) with a great deal of force. My colleagues dismiss this understanding by asserting that only a person who intends to inflict injury “uses” force. But the text does not mention intent. Instead it specifies that an offense is a crime of violence if an element involves the use of force against a person. Most criminal statutes separate the forbidden acts (the actus reus) from the mental state (the mens rea). Who did what to whom is the actus reus; with what mental state is the mens rea. By saying that an offense qualifies if “an element” involves the use of force, the Guideline establishes that the actus reus may suffice, even if the statute also requires proof of a mental state. Consider, for example, a statute that forbids striking a person with intent to injure him. The separation of the actus reus (the striking) from the mens rea (the intent to injure) implies that “striking” does not itself entail a mental state. (You can strike a person by accident.) Yet this law surely has, as an element, the use of force against the person of another.

Citation of a dictionary or two does not abolish the centuries-old distinction between mens rea and actus reus. † Words do not *379 have meaning in the abstract; they take color from context. That is the point of both the majority’s opinion in Smith v. United States, — U.S. —, 113 S.Ct. 2050 , 124 L.Ed.2d 138 (1993), which holds that one may “use” a gun in the course of a drug crime by bartering the gun for drugs, and Justice Scalia’s dissent, id. at —, 113 S.Ct. at 2060-63 , which concludes that the word “use” in 18 U.S.C. § 924 (e)(1) refers to the primary uses of guns (shooting bullets or intimidating victims). None of the Justices suggested that “use” in § 924(c)(1) has an intent component; that came (if at all) in the requirement that the gun be used “in relation to” the drug deal, and even that condition is satisfied, the Court said, if the gun has “some purpose or effect with respect to the drug trafficking crime”. — U.S. at —, 113 S.Ct. at 2059 (emphasis added). The dominant view among federal courts, stated most clearly in United States v. Bailey, 36 F.3d 106, 108 (D.C.Cir.1994) (en banc), cert. granted, — U.S. —, 115 S.Ct. 1689 , 131 L.Ed.2d 554 (1995), is that a gun close to drugs, and accessible to the defendant, has been “used” in a drug transaction. That understanding, which employs objective criteria and omits any investigation of mental state, is one this court shares. United States v. Perez, 28 F.3d 673, 676 (7th Cir.1994); United States v. Gunning, 984 F.2d 1476, 1481-83 (7th Cir.1993); United States v. Vasquez, 909 F.2d 235, 240 (7th Cir.1990). • It is hard to square with the majority’s belief that the word “use” necessarily implies a mental-state component, no matter the statutory context. Even the dissenting judges in Bailey , who concluded that a gun is “used” only if displayed, brandished, or discharged, did not equate “use” with intent to harm; a gun may be discharged accidentally, and thus “used,” in the same sense that a drunk driver may mow down a pedestrian without intending injury. (A gun-wielding drug dealer intends to hold the gun, and the drunk driver intended to drink and drive; the intent to do the risk-creating act may well be “transferred” to the completed harm just as in felony-murder cases, but this need not detain us.)

Guideline 4B1.2(1) elevates punishment when harm is completed, threatened, attempted, or likely. Would it not be strange to treat intent as essential under subsection (i), only to omit it from subsection (ii)? Then offenses that entail actual force and severe injury would not qualify under subsection (i), but would come in the back door of subsection (ii) — for crimes that necessarily entail physical injury (because that is an element of the offense) also entail the risk of physical injury! Let us take Occam’s razor and-slice off the unnecessary construct. My colleagues reply (at 375-376) that subsection (ii) disregards the elements of the offense, and therefore does not identify as “risky” all activities in which harm materializes. I agree with this in the sense that freak harms do not show significant risk. People occasionally lose their arms in elevators, but using an elevator is not hazardous. But every conviction of first-degree assault in Alabama entails “serious bodily injury,” and a category of acts 100% of which end in “serious bodily injury” necessarily “presents a serious potential risk of physical injury to another.” As the majority writes, “subsection (ii) focuses "on the conduct involved in the offense” (ibid.; emphasis on original). The “offense” is first-degree assault, and the conduct “involved in the offense” is maiming someone else with a car. That activity satisfies § 4B1.2(1) every time.

The latest Oxford English Dictionary, on which the majority relies, includes dozens of definitions of “use” that do not suggest any mental ingredient. The definition in my colleagues' opinion is the first clause of one definition in a list of 54 (22 for the noun, 25 for the verb, and 7 for the adjective "used") spread over six pages; most of the main definitions have two to four sub-definitions. The second clause of the same sub-definition that the majority quotes omits any hint of purpose or intent. See also A. Raymond Randolph, Dictionaries, Plain Meaning, and Context *379 in Statutory Interpretation, 17 Harv.J.L. & Pub. Pol’y 71 (1994).