In U.S. v. Chitwood, No. 11-12054 (April 5, 2012),
the Court held that the Georgia offense of false imprisonment qualified as a crime of violence for purposes of "career offender" treatment under U.S.S.G. § 4B1.1.
The Court recognized that the use or threat of physical force is not an element of Georgia false imprisonment. Consequently, the offense did not qualify under the "elements" test of the career offender guidelines. However, the offense did qualify under the "residual clause."
The Court pointed out that in Sykes v. U.S., 131 S.Ct. 2267 (2011), the Supreme Court had retreated from its statement in Begay v. U.S., 553 U.S. 137 (2008) that conduct must be "purposeful, violent and aggressive" in order to qualify under the residual clause. Sykes limited this inquiry to strict liability-type offenses. Offenses that are not strict liability, negligence or recklessness crimes qualify under the residual clause if they categorically pose a serious potential risk of physical injury that is similar to the risks of physical injury posed one of the crimes enumerated in the guideline.
Georgia cases make clear that false imprisonment ordinarily creates risks of physical injury to another similar to the risks of burglary, an enumerated offense. Arresting, confining, or detaining someone against his or her will presents a risk of serious physical injury similar to burglary.
The Court noted that statistical evidence is not required to prove the risk of injury. "Here, being without the benefit of empirical evidence, we rely on our common sense."