United States v. Wise: Is Failure to Stop for the Police a Sentence-Enhancing Crime of Violence?

I. INTRODUCTION In United States v. Wise1 the Tenth Circuit held that a felony conviction under Utah's so-called "failure-to-stop"2 (for the police) statute could be a "crime of violence."3 In 2007, Michael Charles Wise pleaded guilty to felony possession of a firearm;4 the issue for the Tendi Circuit was whether his 2006 failure-to-stop conviction would qualify as a sentence enhancing "crime of violence" under the United States Sentencing Guidelines ("USSG").5 The Tenth Circuit examined the statutory definition for "crime of violence," as well as the comparable term "violent felony,"6 to determine whether Wise's failure-to-stop offense presented a "serious potential risk of physical injury to another."7 The court held that his conviction qualified as a "crime of violence," reading the term broadly and relying on its own precedent, United States v. West,s which had already been partially overruled by the Supreme Court's 2009 decision in Chambers v. United States.9 The Supreme Court's recent decisions, like Chambers and Begay v. United States,10 unambiguously indicate an unwillingness to liberally interpret the statutory language defining "crime of violence."11 Even so, since the Court has not been able to articulate a fully workable test to effectively guide the lower courts,12 the result has been a circuit split on whether a failure-to-stop conviction should qualify as a sentence enhancing "crime of violence."13 The Supreme Court has recendy taken notice, granting certiorari in another case to review this particular question.14 This Note will argue that while the core holding of West (and Wise) was not directly overruled by the Supreme Court in Chambers, a careful analysis of the Court's often vague jurisprudence supports the conclusion that a felony conviction under Utah's sweeping failure-to-stop statute should not qualify as a "crime of violence." In contemplating how the Supreme Court might deal with this issue, this Note considers a proposal by Judge Richard Posner of the Seventh Circuit, as well as the possibility that the Court might strike the "crime of violence" residual clause on account of unconstitutional vagueness. II. FACTS AND PROCEDURAL HISTORY On August 22, 2007, Michael Charles Wise was "charged in a one-count indictment with being a previously- convicted felon in possession of a nine millimeter Smith & Wesson handgun, in violation of 18 U.S.C. § 922(g)(1)."15 That statute makes it unlawful for "any person . . . who has been convicted in any court of, [sic] a crime punishable by imprisonment for a term exceeding one year . . . [from] possess[ing] in or affecting commerce, any firearm or ammunition."16 Wise ultimately pleaded guilty to die gun possession a few montiis after he was charged.17 In its Presentence Investigation Report ("PSR"), the Probation Office "recommended that Wise be sentenced under USSG 2K2. 1(a)(4)(a)."18 Under that section, the offender's base offense level19 is raised if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of ... a crime of violence."20 Section 4Bl. 2 of the USSG defines "crime of violence" as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) 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.21 The PSR noted diat Wise had been previously convicted in 2006 "for failing to stop in response to a police officer's command to do so, which under Utah Code § 41-6A-210 is a third-degree felony."22 This failure-to-stop statute reads as follows: An operator who receives a visual or audible signal from a peace officer to bring the vehicle to a stop may not: (i) operate the vehicle in willful or wanton disregard of the signal so as to interfere with or endanger the operation of any vehicle or person; or (ii) attempt to flee or elude a peace officer by vehicle or other means. …