Eleventh Circuit Finds Fleeing Police May Give Rise to ACCA Sentence Enhancement - U.S. v. Petite
I've written here before about the use of Florida criminal laws to create sentence enhancements under federal laws like the Armed Career Criminal Act. These laws typically use language like "serious crime" or "violent felony" to encompass state criminal codes without having to name them all, and as a result, they can be difficult to interpret. In United States v. Petite, defendant Michael Petite challenged his sentence for felon in possession of a firearm, which was substantially enhanced by the use of the Armed Career Criminal Act. The ACCA is used when the defendant has a prior "violent felony," and the central Florida trial court found that Petite's conviction for fleeing from a patrol car qualified. In its opinion, the Eleventh U.S. Circuit Court of Appeals agreed.
Petite was arrested in 2010 as part of an undercover drug investigation, carrying less than a gram of crack cocaine and a loaded revolver. He had multiple felonies on his record already, so he was indicted and charged with being a felon in possession of a firearm. Petite pleaded guilty, and the pre sentence investigation recommended a sentence enhancement under the ACCA because he had previous felony offenses out of Pinellas County. Those offenses were robbery, sale of cocaine and fleeing and eluding a police officer. This enhanced his sentence by 10 levels, leading to a guidelines sentencing range of 188 to 235 months of imprisonment. Before and during the sentencing hearing, Petite objected unsuccessfully to the use of the fleeing and eluding prior as a violent felony. He nonetheless received 188 months in prison and now appeals.
In reviewing, the Eleventh Circuit scrutinized whether the Florida statute met the federal definition of a violent felony. The Florida law makes it a third-degree felony to willfully attempt to flee a police officer in a marked car with siren and lights activated. An aggravated version of that offense, with which Petite was not charged, makes it a more serious crime to flee in such a way and also drive recklessly and/or cause bodily injury or death. The ACCA, in turn, makes a crime a violent felony if it involves conduct that presents a serious potential risk of injury. That language has been interpreted four times in recent years by the U.S. Supreme Court, including in one case involving a "strikingly similar" Indiana statute. That case upheld the use of the ACCA, and the Eleventh likewise found that any form of vehicle flight poses risks similar to the enumerated crimes of burglary and arson. It rejected the argument that the existence of an aggravated version distinguishes Petite's case from the Supreme Court case, saying it was irrelevant for ACCA purposes.
This decision is actually the second to interpret Florida's fleeing and eluding law after the Supreme Court decision on the Indiana law, though it's the first in the Eleventh Circuit. In U.S. v. Hudson, the Fourth U.S. Circuit Court of Appeals also concluded that fleeing and eluding a police officer in Florida is a violent felony for ACCA purposes. I wrote then that I disagreed, and I still do. Prosecutors in Florida who believe the defendant has put others in jeopardy can choose the aggravated crime. We can only assume that if they didn't do so, they believe they can't get a conviction for the aggravated crime, which in turn means there wasn't a risk to others. Though the Eleventh Circuit finds that irrelevant in light of the Supreme Court case, that case involved an Indiana law with no higher punishment for more reckless driving. The law should recognize that these distinctions are meaningful when deciding whether fleeing and eluding puts others in danger to the same degree as another crime.
If you're charged with fleeing or resisting an officer or another crime in Florida, don't wait to call Miami-based Seltzer Law, P.A. We answer the phone 24 hours a day and seven days a week, because we know police don't stop making arrests after business hours. To learn more or talk to us about your case, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.
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