Federal Appeals Court Finds Florida Fleeing and Eluding Law Violations Are Violent Felonies – U.S. v. Hudson

March 14, 2012 by David S. Seltzer

As a Fort Lauderdale firearms crimes defense lawyer, I’m sorry to say that I’ve spoken to numerous clients who don’t realize how serious a firearms charge can be. Florida law has mandatory minimums for firearms violations that can go as high as life in prison, and federal law makes it a crime for someone previously convicted of a serious crime to possess a firearm. In fact, thanks to another law called the Armed Career Criminal Act, an ex-offender in possession of a firearm can face sentence enhancements that put him or her in prison for a decade or more. That was the case with Tory Hudson, who was sentenced to 180 months in prison in U.S. v. Hudson. Hudson had previously been convicted of drug charges and pleaded no contest twice to violations of Florida’s fleeing and eluding statute. He challenged the determination that those pleas counted as convictions for violent felonies, triggering the ACCA.

Hudson’s car was stopped in South Carolina for reasons the opinion did not detail. He was arrested for driving with a suspended license and his car was searched, uncovering a revolver with ammunition. He pleaded guilty to possession of a firearm by a felon and was eventually sentenced under the ACCA to 180 months in prison. The sentencing court relied on Hudson’s past conviction for possession of cocaine with intent to distribute and the two fleeing and eluding no-contest pleas. The fleeing and eluding statute makes it illegal in Florida to flee a marked law enforcement vehicle with lights and sirens activated. Hudson appealed, arguing that the Florida law did not count as a violent felony under the ACCA. His appeal was put on hold for several years pending the outcomes of earlier cases involving the same issue, though under different state laws. After the U.S. Supreme Court’s 2011 decision in Sykes v. United States, the Fourth Circuit took it up.

In supplemental briefing after Sykes, Hudson argued that his Florida convictions were not violent felonies, and that if they were, the residual clause in the ACCA was still unconstitutionally vague. The Fourth U.S. Circuit Court of Appeals ultimately rejected both arguments. The ACCA’s residual clause defines a violent felony to include one that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” In Sykes, the Supreme Court tested whether the subject crime was comparable in risk to the other crimes listed in the statute, which include burglary, arson and explosives crimes. The Fourth said Florida’s statute required a separate analysis because it distinguishes between levels of risk posed by the flight, but ultimately decided that even the base offense poses a high risk. Invoking Sykes and disregarding an Eleventh Circuit ruling on the same law, it concluded that fleeing law enforcement inevitably poses a risk of violence, disregards others’ safety and forces the police to give chase. It then dismissed the vagueness argument as waived, but noted that the Supreme Court has rejected it consistently.

As a Miami-Dade criminal defense attorney, I would have preferred more deference to the Florida legislature on this issue. Florida’s fleeing and eluding law, as noted, has three tiers of seriousness, including the base offense, an offense that involves reckless driving and an offense that causes death or serious bodily injury. As a result, our state already has defined the seriousness of the crime and given prosecutors the option to choose which best fits the circumstances. If prosecutors choose the base offense level, it stands to reason that they don’t believe there was a “serious potential risk of physical injury to another,” as the ACCA puts it. That’s why, as a South Florida criminal defense lawyer, I am pleased that the Eleventh Circuit’s less strict standard applies to Florida.

Seltzer Law, P.A., represents criminal defendants in greater Miami and throughout the state of Florida. We know police officers don’t close up shop after business hours, so neither do we — you can reach us 24 hours a day and seven days a week. For a free consultation, you can reach us through our website or call 1-88-THE-DEFENSE (1-888-843-3333).

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