Eleventh Circuit Court of Appeals - Published Opinions

Monday, June 28, 2010

Alexander: Firing Firearm from Vehicle is "Crime of Violence"

In U.S. v. Alexander, No. 08-17062 (June 25, 2010), the Court held that a prior conviction under Fla. Stat. § 790.15(2) fo discharging a firearm from a vehicle within 1,000 feet of another person qualified as a crime of violence under the career offender provisions of the Sentencing Guidelines. The Court also rejected Alexander’s challenge to the district court’s refusal to award credit for time served in state custody, noting that this issue must first be raised by administrative challenge to the Bureau of Prisons’ computation of his sentence.

After reviewing Begay and Chambers, the Court noted that courts must use a “categorical” approach to the “crime of violence” issue, looking to the elements of the offense. Here, the offense was more serious than the Florida misdemeanor of merely discharging a firearm in a public place, a distinction that “suggests that this provision targets violent and aggressive conduct, not the mere careless use of a firearm.” Further, the offense posed a serious potential risk of physical injury, because the firing of a weapon poses a risk that a bystander will be injured by a stray bullet. Further, like the enumerated offenses of burglary and arson, the conduct is “purposeful,” even if it does not involve “a specific intent to harm.” Firing a firearm “[m]ore often than not . . . is a violent and aggressive act.” “[A] person who discharges a firearm from a vehicle performs a deliberate act that poses an obvious risk of injury or death to innocent third parties.” The Court analogized the offense to fleeing at high speed or with wanton disregard for safety, conduct which it had held to qualify as a crime of violence in U.S. v. Harris, 586 F.3d 1283 (11th Cir. 2009).