Welch v. United States

In the

United States Court of Appeals
For the Seventh Circuit

No. 08-3108

D EVIN W ELCH,
Petitioner-Appellant,
v.

U NITED STATES OF A MERICA,
Respondent-Appellee.

Appeal from the United States District Court
for the Central District of Illinois.
No. 2:08-cv-02051-MPM-DGB—Michael P. McCuskey, Chief Judge.

A RGUED D ECEMBER 4, 2009—D ECIDED M AY 4, 2010

Before P OSNER, R IPPLE and W OOD , Circuit Judges.
R IPPLE, Circuit Judge. In 2005, Devin Welch pleaded
guilty to unlawful possession of a firearm by a felon.
He then brought a motion under 28 U.S.C. § 2255 to
vacate his sentence. The district court denied the § 2255
motion in pertinent part. We granted a certificate of
appealability to address two of Mr. Welch’s contentions.
First, he submits that his prior conviction for the Illinois
crime of aggravated fleeing or attempting to elude a
police officer cannot qualify as a “violent felony” within
2 No. 08-3108

the meaning of the Armed Career Criminal Act (“ACCA”).
Second, he submits that his prior juvenile adjudication
cannot be used to enhance his sentence beyond the statu-
tory maximum because it was not obtained by a jury
trial. For the reasons set forth in this opinion, we affirm
the judgment of the district court.

I
BACKGROUND
In 2005, Devin Welch pleaded guilty to unlawful pos-
session of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1). The presentence report (“PSR”) indicated
that Mr. Welch had four prior convictions that were
“violent felonies” for purposes of the ACCA: two aggra-
vated batteries, aggravated fleeing or attempting
to elude a police officer and a juvenile adjudication for
attempted armed robbery. Without the ACCA’s statutory
enhancement, the statutory maximum sentence for
Mr. Welch’s crime was 120 months.
At sentencing, Mr. Welch’s counsel made no objec-
tions to the PSR, but Mr. Welch submitted handwritten
memoranda making objections pro se. One of those
objections was to the use of the previous convictions to
enhance his sentence. The district court overruled the
objections and sentenced Mr. Welch to 180 months’
imprisonment, to be followed by a five-year term of
supervised release. The district court did not rely on one
of the aggravated battery convictions—for spitting—but,
as a result of the other three violent felonies, Mr. Welch
No. 08-3108 3

was nonetheless subject to the ACCA’s mandatory mini-
mum sentence of 180 months’ imprisonment.1 See 18 U.S.C.
§ 924(e)(1). On direct appeal, Mr. Welch, through counsel,
did not pursue any of the pro se objections. He con-
tended only that the trial court had erred in failing to
specify the number of required drug tests during the
period of supervised release. We summarily affirmed
the district court’s judgment. United States v. Welch,
No. 06-3385 (7th Cir. Feb. 21, 2007).
Mr. Welch next filed a pro se § 2255 motion. He con-
tended that his conviction for aggravated fleeing or
attempting to elude a police officer was not a violent
felony because, under Illinois law, the offense is charac-
terized as a “serious traffic offense but not something
that presents a serious potential risk of physical injury
to another.” R.1 at 11.2 He also contended that his
juvenile adjudication could not be used to enhance
his sentence beyond the statutory maximum consistent
with the Sixth Amendment because it did not result
from a jury trial; he also contended that his counsel
had been ineffective for failing to raise this claim.3
The district court denied these aspects of the motion. In
rejecting Mr. Welch’s ACCA claim, it relied on United

1
The Government concedes that if Mr. Welch’s appeal is
successful, he is entitled to be resentenced.
2
R.__ refers to the record of the § 2255 proceeding.
3
Mr. Welch also again challenged the district court’s drug
testing ruling. This aspect of the motion was granted, and is not
at issue in this appeal. Also, Mr. Welch raised other ineffective
assistance challenges that are not renewed on appeal.
4 No. 08-3108

States v. Howze, 343 F.3d 919, 921 (7th Cir. 2003), in
holding that flights to avoid arrest categorically created
a serious potential risk of injury to another and were
thus violent felonies. In rejecting Mr. Welch’s ineffective
assistance claim, it noted that, at the time of sentencing,
the circuits were divided 3-1 against Mr. Welch’s posi-
tion, with the Seventh Circuit silent. Thus, it was reason-
able for counsel to choose not to raise the issue. More-
over, Mr. Welch suffered no prejudice because he had
raised the issue pro se.
We initially granted a certificate of appealability
only on the issue of ineffective assistance. We subse-
quently expanded the certificate to include the issue of
whether Mr. Welch’s conviction for aggravated fleeing
or attempting to elude a police officer properly was
classified as a violent felony in light of the Supreme
Court’s decision in Begay v. United States, 553 U.S. 137
(2008).

II
ANALYSIS
A.
1.
Initially, we note that we have held that deviations
from the Sentencing Guidelines generally are not cogniza-
ble on a § 2255 motion. United States v. Scott, 997 F.2d 340,
343 (7th Cir. 1993). Other circuits have reached a similar
No. 08-3108 5

conclusion.4 However, Scott does not govern the situation
before us for two reasons. First, Scott relied, in significant
part, on the text of § 2255, and suggested that the Guide-
lines were not “laws of the United States.” Id. at 341; see
also Taylor v. Gilkey, 314 F.3d 832, 833 (7th Cir. 2002)
(“Because the Guidelines are not ‘laws’ for purposes of
§ 2255, however, this argument could not support re-
lief.”); Brannigan v. United States, 249 F.3d 584, 588 (7th
Cir. 2001) (same). That rationale does not apply here
because the statutory text clearly permits relief if “the
sentence was in excess of the maximum authorized by
law.” 28 U.S.C. § 2255(a). Here, Mr. Welch pointedly
argues that his sentence, as enhanced by the ACCA, is
above the statutory maximum, which would entitle him

4
See, e.g., United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th
Cir. 1999) (collecting cases); Jones v. United States, 178 F.3d 790,
796 (6th Cir. 1999) (“Moreover, an error in the application of
the Sentencing Guidelines does not warrant collateral relief
under § 2255 absent a complete miscarriage of justice.”); Burke
v. United States, 152 F.3d 1329, 1332 (11th Cir. 1998) (“We
thus hold that a claim that the sentence imposed is contrary to
a post-sentencing clarifying amendment is a non-constitutional
issue that does not provide a basis for collateral relief in the
absence of a complete miscarriage of justice.”); Graziano v.
United States, 83 F.3d 587, 590 (2d Cir. 1996) (collecting cases).
We also note that the Supreme Court has held that an error
of law, as distinguished from a constitutional error, is cog-
nizable under § 2255 only if it “constituted a fundamental
defect which inherently results in a complete miscarriage of
justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979)
(internal quotation marks and citation omitted).
6 No. 08-3108

to relief.5 Second, our decision in Scott was based in
significant part on the difference between direct appeal
and collateral attack, ultimately concluding “that argu-
ments of the sort Scott proffers must be advanced on
direct appeal or not at all.” Scott, 997 F.3d at 343. How-
ever, “arguments of the sort” at issue here, where a
change in law reduces the defendant’s statutory maxi-
mum sentence below the imposed sentence, have long
been cognizable on collateral review.6

5
See United States v. Peterman, 249 F.3d 458, 462 (6th Cir. 2001)
(“Courts have generally declined to collaterally review sentences
that fall within the statutory maximum.”); United States v.
Pregent, 190 F.3d 279, 284 (4th Cir. 1999) (“Thus, while § 2255
applies to violations of statutes establishing maximum sen-
tences, it does not usually apply to errors in the application of
the Sentencing Guidelines.”); Auman v. United States, 67 F.3d
157, 161 (8th Cir. 1995) (“While section 2255 does provide
relief for cases in which ‘the sentence was in excess of the
maximum authorized by law,’ this provision applies to viola-
tions of statutes establishing maximum sentences, rather than
garden-variety Sentencing Guideline application issues.”); cf.
United States v. White, 584 F.3d 935, 948 (10th Cir. 2009) (holding
that appeal waiver made in a plea agreement results in a
miscarriage of justice “where the sentence exceeds the stat-
utory maximum” (citation omitted)); United States v. Sisco,
576 F.3d 791, 796 (8th Cir. 2009) (same); United States v.
Guillen, 561 F.3d 527, 531 (D.C. Cir. 2009) (same).
6
In Davis v. United States, 417 U.S. 333 (1974), a change in
intervening law narrowed the petitioner’s statute of conviction,
potentially excluding petitioner’s conduct. The Supreme Court
held that:
(continued...)
No. 08-3108 7

Finally, we note that the Government has waived
any procedural default argument by failing to address
the issue in its brief. See Torzala v. United States, 545
F.3d 517, 522 (7th Cir. 2008) (“Because the government
did not assert procedural default as a defense in this
action but instead chose to respond on the merits, how-
ever, the government has waived the procedural default.”).

2.
We next must consider whether the rule announced in
Begay, that a crime must be similar in kind to the enu-
merated offenses in order to qualify as a violent felony
under the ACCA, is applicable under the Supreme
Court’s retroactivity framework. If it is, then the error of
which Mr. Welch complains is cognizable in this col-
lateral review proceeding.
New procedural rules that are established after a con-
viction becomes final generally do not apply on collateral

6
(...continued)
If [petitioner’s] contention is well taken, then Davis’
conviction and punishment are for an act that the law
does not make criminal. There can be no room for
doubt that such a circumstance “inherently results in a
complete miscarriage of justice” and “present[s] excep-
tional circumstances” that justify collateral relief under
§ 2255.
Id. at 346-47 (brackets in original). As we shall demonstrate in
the text, the situation before us is analogous.
8 No. 08-3108

review. Teague v. Lane, 489 U.S. 288, 310 (1988). New
substantive rules, however, are not barred by the
Teague rule. The Supreme Court has explained this dis-
tinction:
New substantive rules generally apply retroac-
tively. This includes decisions that narrow the
scope of a criminal statute by interpreting its
terms, as well as constitutional determinations
that place particular conduct or persons covered
by the statute beyond the State’s power to punish.
Such rules apply retroactively because they neces-
sarily carry a significant risk that a defendant
stands convicted of an act that the law does not
make criminal or faces a punishment that the
law cannot impose upon him.
Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004) (internal
quotation marks and citations omitted, emphasis re-
moved).
These substantive rules stand in contrast to procedural
rules which:
do not produce a class of persons convicted of
conduct the law does not make criminal, but
merely raise the possibility that someone con-
victed with use of the invalidated procedure
might have been acquitted otherwise.
Id. at 352.
Our colleagues in the Tenth Circuit recently have ad-
dressed this substantive/procedural distinction. In
United States v. Shipp, 589 F.3d 1084 (10th Cir. 2009), that
court had to decide whether Chambers v. United States,
No. 08-3108 9

___U.S. ___, 129 S. Ct. 687 (2009), is to be applied retroac-
tively.7 As we shall discuss in detail later, Chambers, like

7
One circuit granted a certificate of appealability on the
question of Begay’s retroactivity as applied to the career offender
Sentencing Guideline, but then held that “[b]ecause his status
as a career offender is a non-constitutional issue that Coley
could have raised on direct appeal, it is not cognizable on
collateral review under § 2255.” United States v. Coley, No. 08-
15962, 2009 WL 2019859, at *3 (11th Cir. July 14, 2009) (per
curiam).
One other circuit has stated in dicta that that circuit’s
holding that non-residential burglary is not per se a “crime of
violence” under the Sentencing Guidelines is not retroactive.
United States v. Giggey, 551 F.3d 27, 36 n.3 (1st Cir. 2008).
District courts have split on the question of Begay’s retroac-
tivity. Compare United States v. Ross, No. 09-cv-779-bbc, 2010
WL 148397, at *4 (W.D. Wis. Jan. 12, 2010) (not retroactive);
United States v. Jones, No. 6:09-7082-DCR, 2010 WL 55930, at *3-*6
(E.D. Ky. Jan. 4, 2010) (same); Kirkland v. United States, No. 3:09-
CV-335 RLM, 2009 WL 3526185, at *8 (N.D. Ind. Oct. 22, 2009)
(same); United States v. Johnson, No. 04-269 (MJD/AJB), 2009
WL 2611279, at *3-*4 (D. Minn. Aug. 24, 2009) (same); Sun
Bear v. United States, No. CIV 08-3021, 2009 WL 2033028, at *3-*4
(D. S.D. July 9, 2009) (same); United States v. Narvaez, No. 09-cv-
222-bbc, 2009 WL 1351811, at *1 (W.D. Wis. May 12, 2009)
(same); Lindsey v. United States, No. 09-0249-CV-W-ODS, 2009
WL 2337120, at *2 (W.D. Mo. July 29, 2009) (same); United States
v. Campbell, No. 6:06-812-HMH, 2009 WL 1254287, at *1 (D. S.C.
May 1, 2009) (same), with United States v. Fondren, No. 4:06-CR-22
CEJ, 2009 WL 3246906, at *1 (E.D. Mo. Oct. 6, 2009) (retroactive);
(continued...)
10 No. 08-3108

7
(...continued)
Kendrick v. United States, No. 5:08-cv-447-Oc-10GRJ, 2009 WL
2958976, at *2 (E.D. Fla. Sept. 15, 2009) (same); United States v.
Blue, No. 09-1108, 2009 WL 2581284, at *3-*4 (D. Kan. Aug. 20,
2009) (finding Chambers to be retroactive); Frederick v. United
States, No. 08-22143-CV, 2009 WL 2488965, at *8 (S.D. Fla.
Aug. 12, 2009) (retroactive) (adopting magistrate judge’s
report finding Begay to be retroactive); McCarty v. United States,
No. 8:08-cv-1619-T-24TBM, 2009 WL 1456386, at *2 (M.D. Fla.
May 22, 2009) (retroactive); George v. United States, 650 F. Supp.
2d 1196, 1200 (M.D. Fla. 2009) (same); United States v.
McElroy, No. 09-CV-0040-CVE-PJC, 2009 WL 1372908, at *2-*3
(N.D. Okla. May 14, 2009) (same); United States v. Radabaugh,
No. 08-CV-762-CVE-TLW, 2009 WL 565065, at *5 (N.D. Okla.
Mar. 5, 2009) (same); United States v. Leonard, No. 08-CV-0389-
CVE-FHM, 2009 WL 499357, at *3-*4 (N.D. Okla. Feb. 27, 2009)
(same); United States v. Glover, No. 08-CV-0261-CVE-FHM,
2008 WL 2951085, at *4 (N.D. Okla. July 28, 2008) (same).
Those holding that the Begay rule is substantive have rea-
soned, just as the Tenth Circuit did, that “Begay limits the
authority of a court to increase a defendant’s punishment for
certain types of conduct.” McElroy, 2009 WL 1372908, at *3; see
also Frederick, 2009 WL 2488965, at *8 (carrying a concealed
firearm “is now categorically outside the reach of the federal
statute”); Blue, 2009 WL 2581284, at *4 (“Defendants who
have been sentenced on the basis of certain prior convictions
may thus have been subjected to increased punishment that the
law did not allow.”); McCarty, 2009 WL 1456386, at *2 (holding
that Begay “narrows the scope of § 924(e) by interpreting its
terms, making the conduct for which Petitioner was sentenced
no longer a valid basis for his sentence”).
(continued...)
No. 08-3108 11

Begay, interpreted the ACCA and narrowed the scope of
“violent felony.” The Tenth Circuit held that Chambers
articulated “a substantive rule of statutory interpreta-
tion.” Shipp, 589 F.3d at 1089. A defendant who “does not
constitute an ‘armed career criminal’ ” after Chambers
has “received ‘a punishment that the law cannot impose
upon him.’ ” Id. at 1091 (quoting Schriro, 542 U.S. at 352).
Accordingly, the court held that Mr. Shipp’s due
process rights were violated and that he was entitled
to collateral relief. Id.8
At the outset of our analysis, we recognize that, although
Begay narrowed the scope of a criminal statute, it did not
narrow any of the elements of a criminal offense. We
also must recognize that Mr. Welch was convicted of,
and punished for, unlawfully possessing a firearm, which
is still criminal conduct after Begay. The question, there-
fore, is whether a statutory rule defining the scope of a
sentencing enhancement that increases the maximum

7
(...continued)
Those district courts holding that Begay is procedural have
suggested that it “does not describe conduct that is beyond
Congress’ power to punish.” Lindsey, 2009 WL 2337120, at *2.
They also have contrasted “a new substantive rule” with “a
rule of interpretation for determining the application of a
sentencing enhancement under the Federal Sentencing Guide-
lines.” Sun Bear, 2009 WL 2033028, at *4. At least one court
has held that Begay is not retroactive because the Supreme
Court has not said it is retroactive. Campbell, 2009 WL 1254287,
at *1.
8
Notably, both parties agree that the Begay rule is substantive.
12 No. 08-3108

allowable statutory sentence on the basis of a prior con-
viction is properly classified as substantive.
There is significant merit to the Tenth Circuit’s analysis.
In essence, Begay narrowed substantially Mr. Welch’s
exposure to a sentence of imprisonment. Without the
ACCA enhancement, Mr. Welch faced a statutory
maximum of 10 years’ imprisonment. With the ACCA
enhancement, Mr. Welch faced a statutory minimum of 15
years’ imprisonment. In short, the application of the
ACCA imposed, at a minimum, five years of imprison-
ment that the law otherwise could not impose upon
him under his statute of conviction. Such an increase in
punishment is certainly a substantive liability. By con-
trast, such an increase in punishment hardly resembles
a procedural device, as the term is used in Schriro. It does
not address the accuracy of the process afforded
Mr. Welch; it addresses the degree to which the Gov-
ernment may punish him for his violation of the law.
No doubt, the change at issue here is not the same as
the change at issue in Schriro. When the elements of a
crime are narrowed, that change serves to prohibit any
punishment for the conduct. Begay prohibits some of that
punishment. We believe, however, that this distinction
is one of degree, not one of kind. Cf. McReynolds v. United
States, 397 F.3d 479, 481 (7th Cir. 2005) (holding that
Booker was not retroactive because “[n]o conduct that
was forbidden before Booker is permitted today; no maxi-
mum available sentence has been reduced”).
Therefore, the Begay rule is retroactively applicable
on collateral review.
No. 08-3108 13

B.
We now turn to Mr. Welch’s substantive contentions
regarding Begay’s application. He submits that his con-
viction for the Illinois offense of aggravated fleeing or
attempting to elude a police officer cannot qualify, con-
sistent with Begay, as a “violent felony” within the
meaning of the ACCA.

1.
We shall begin our analysis by reviewing the law rele-
vant to the interpretation of the ACCA.
The ACCA provides in pertinent part:
In the case of a person who violates section 922(g)
of this title and has three previous convictions by
any court referred to in section 922(g)(1) of this title
for a violent felony or a serious drug offense, or
both, committed on occasions different from one
another, such person shall be . . . imprisoned not
less than fifteen years . . . .
18 U.S.C. § 924(e)(1). The ACCA goes on to define “violent
felony” as follows:
(B) the term “violent felony” means any crime
punishable by imprisonment for a term ex-
ceeding one year, or any act of juvenile delin-
quency involving the use or carrying of a fire-
arm, knife or destructive device that would be
punishable by imprisonment for such term if
committed by an adult, that—
14 No. 08-3108

(i) has as an element the use, attempted
use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion, involves
use of explosives, or otherwise involves
conduct that presents a serious potential
risk of physical injury to another; and
(C) the term “conviction” includes a finding that
a person has committed an act of juvenile delin-
quency involving a violent felony.
Id. § 924(e)(2)(B) & (C).
It is undisputed that the Illinois crime in question is
punishable by imprisonment for a term exceeding one
year,9 and that it is not one of the crimes specifically
enumerated in subsection (ii). Also, the statute does not
necessarily require the use, attempted use or threatened
use of physical force against the person of another. There-
fore, this case centers around the residual clause,1 0 or
whether the crime “otherwise involves conduct that
presents a serious potential risk of physical injury to
another.” Id. § 924(e)(2)(B)(ii).

9
The statute provides that a first violation shall be a class 4
felony. 625 ILCS 5/11-204.1(b). A class 4 felony is punishable
by a sentence of “not less than one year and not more than
3 years.” 730 ILCS 5/5-4.5-45.
10
The Supreme Court’s recent decision in Johnson v. United
States, ___ U.S. ___, 130 S. Ct. 1265 (2010), does not interpret
this clause of the statute.
No. 08-3108 15

In its analysis of the scope of the ACCA, the district court
relied on United States v. Howze, 343 F.3d 919 (7th Cir.
2003). In that case, we held that all escapes, including
fleeing a police officer in a vehicle, were violent felonies.
Id. at 922. We held that escaping or fleeing presented
a serious potential risk of physical injury to another. Id.
We reasoned that “the [ACCA] calls for an assessment
of risk rather than actual outcomes, and the risk that
someone will get hurt during recapture (or flight to
avoid recapture) does not depend on how the offender
got away in the first place.” Id. We further noted that
“flight may be even more dangerous than escape” because
“[c]ollisions between fleeing vehicles and pedestrians
or others who get in the way are common.” Id. Although
“many escapes do not entail flight to avoid capture . . .
all flights involve that risk-creating conduct.” Id. (em-
phasis in original).
Howze was decided before the Supreme Court decided
Begay. In Begay, the Court held that, in order to be
classified as a violent felony, it is not sufficient that the
offense present a serious potential risk of physical injury
to another. Additionally, the offense must be “roughly
similar, in kind” to the enumerated offenses. Begay, 553
U.S. at 143. The listed offenses, the Court noted, “typically
involve purposeful, violent, and aggressive conduct”
such that it makes it “more likely that an offender, later
possessing a gun, will use that gun deliberately to harm a
victim.” Id. at 144-45 (internal quotation marks and cita-
tion omitted). The offense before the Court, driving under
the influence, did not require purposeful conduct, but
was instead more akin to a strict liability crime. Id. at 145.
16 No. 08-3108

DUI, therefore, did not show an increased likelihood
that the offender would point a gun and pull the trigger.
Id. at 146.
We applied the Begay framework to a fleeing statute
in United States v. Spells, 537 F.3d 743 (7th Cir. 2008). We
held that fleeing an officer in a vehicle constituted a
violent felony. Id. at 752. We held that the offense was
“purposeful,” because the statute required that it be
done “knowingly or intentionally.” Id. We also held that
flight in a vehicle was inherently “aggressive.” Id. “Taking
flight calls the officer to give chase, and aside from
any accompanying risk to pedestrians and other
motorists, such flight dares the officer to needlessly
endanger himself in pursuit.” Id.
After Spells, the Supreme Court decided Chambers.
There, the Court held that failure to report for penal
confinement is not a violent felony. Failure to report
does not present a serious risk of physical injury to an-
other, and it is “a form of inaction, a far cry from the
purposeful, violent, and aggressive conduct potentially
at issue when an offender uses explosives against
property, commits arson, burgles a dwelling or residence,
or engages in certain forms of extortion.” Chambers, 129
S. Ct. at 692 (internal quotation marks and citation omit-
ted). The Court also noted that “an individual who fails
to report would seem unlikely, not likely, to call atten-
tion to his whereabouts by simultaneously engaging in
additional violent and unlawful conduct.” Id. The Court
also specifically distinguished failure to report from
escape. Id. at 691.
No. 08-3108 17

After argument in the case now before us, we decided
United States v. Dismuke, 593 F.3d 582 (7th Cir. 2010). In
that case, we reconsidered whether the Wisconsin
statute at issue in Howze could qualify as a violent
felony in light of the Supreme Court’s decisions in Begay
and Chambers. Our focus was on a particular portion of
that statute: the offense of “increasing the speed of the
operator’s vehicle or extinguishing the lights of the
vehicle in an attempt to elude or flee.” Id. at 590 (brackets
omitted). We noted and reaffirmed, but did not rest upon,
the Spells decision. We held that the Wisconsin statute
required purposeful conduct because it required that the
crime be done intentionally. Id. at 592. We also held
that the conduct encompassed by the elements of the
statute was violent and aggressive because it was “charac-
terized by aggressive conduct with a similar potential
for violence and therefore injury as the enumerated
offenses.” Id. at 594. We found in Chambers an implica-
tion that an escape from physical custody would satisfy
Begay and cited several cases (including Spells) that ex-
plained how fleeing is a challenge to the officer’s authority
and is likely to result in a confrontation. Id. at 595.
Shortly after our decision in Dismuke, we decided
United States v. Sykes, ___ F.3d ___, No. 08-3624, 2010
WL 843861 (7th Cir. Mar. 12, 2010). That case involved
the same Indiana statute as the one at issue in Spells. The
defendant acknowledged our holding in Spells, but asked
that we abandon it. We declined the invitation and chose
instead to reaffirm explicitly Spells. We stated that “its
holding is good law and controls our case,” and we
noted the importance of stare decisis. Id. at *3.
18 No. 08-3108

2.
The Illinois statute under which Mr. Welch was con-
victed provides:
The offense of aggravated fleeing or attempting to
elude a peace officer is committed by any driver
or operator of a motor vehicle who flees or at-
tempts to elude a peace officer, after being given
a visual or audible signal by a peace officer in
the manner prescribed in subsection (a) of Section
11-204 of this Code, and such flight or attempt
to elude:
(1) is at a rate of speed at least 21 miles per
hour over the legal speed limit;
(2) causes bodily injury to any individual;
(3) causes damage in excess of $300 to prop-
erty; or
(4) involves disobedience of 2 or more official
traffic control devices.
625 ILCS 5/11-204.1(a).
Unlike the fleeing statutes at issue in Spells, Dismuke
or Sykes, this Illinois statute does not contain an explicit
intent term. Mr. Welch submits that, because of this
omission, the offense cannot satisfy the Begay standard.
Begay itself removed explicitly strict liability crimes
from the ACCA’s reach. United States v. McDonald, 592
F.3d 808, 814 (7th Cir. 2010). Indeed, Begay held that a
violent felony must involve “purposeful” conduct, and
we have held squarely that a crime with a mens rea
No. 08-3108 19

of recklessness cannot qualify as a violent felony
under the residual clause. United States v. Smith, 544
F.3d 781, 786 (7th Cir. 2008). Therefore, in order to
qualify as a violent felony, a crime must involve inten-
tional conduct.
We believe that the Illinois statute, although not
having an explicit requirement of intentional conduct,
does contain an implied requirement of intentional con-
duct. In Mei v. Ashcroft, 393 F.3d 737, 741-42 (7th Cir. 2004),
we considered whether this same Illinois statute was a
“crime of moral turpitude” for purposes of immigration
law. In that context, we found an implied intent require-
ment in the statute, reasoning that “[i]t would be unlikely
for the aggravated version of the offense to have dropped
the requirement of willfulness [when the unaggravated
version did contain such a requirement], though not
impossible.” Although Illinois cases provide little guid-
ance,11 we think Mei was correct for several reasons.

11
In People v. Brown, 839 N.E.2d 596, 600 (Ill. App. Ct. 2005), the
defendant contended that the evidence was insufficient to
support his conviction for aggravated fleeing, because the
State failed to prove that he drove 21 miles per hour over the
speed limit “after becoming aware of any visual or audible
signal to stop.” The police officer testified that the squad car
was marked and that its siren and lights were engaged. See id.
at 601 (“The inference is clear that he activated his emergency
lights and siren while pursuing defendant on Mackinaw.”).
The court held that this was sufficient to support the defen-
dant’s conviction, id. at 601, though it did not specify if
(continued...)
20 No. 08-3108

First, the statute does not punish a driver who “fails to
stop” for an officer, but rather one who “flees or attempts
to elude” an officer. While a “failure to stop” could be an
unintentional act, “fleeing” implies willfulness. As the
term is commonly used, “fleeing” implies something
more than continued motion; it implies a response to
some stimulus. The transitive form of the verb “flee” is
defined as “to run away from” or “shun.” Merriam-Web-
ster’s Collegiate Dictionary 445 (10th ed. 1998) (emphasis
added). This implication is even stronger where the
statute treats “fleeing” as the equivalent of “attempting
to elude,” for “attempt” is a specific intent crime. See
720 ILCS 5/8-4(a).
Moreover, speeding or driving through two stop signs
while being chased by an officer, with no intent to flee the
officer, is not the type of conduct that a statute about
“fleeing” is crafted to punish. Illinois has enacted other
provisions—traffic offenses—to punish running stop
signs or speeding. See 625 ILCS 5/11-305 (obedience to
traffic-control devices); 625 ILCS 5/11-601 (speeding).
These traffic offenses are not felonies, or even misde-
meanors, but rather are petty offenses.1 2 Illinois also

11
(...continued)
this evidence allowed the jury to infer that the defendant
was aware of the pursuing officer or if such awareness
was not required.
12
[U]nless otherwise declared in this Chapter with
respect to particular offenses, it is a petty offense
(continued...)
No. 08-3108 21

makes it a separate misdemeanor to drive 40 miles per
hour or more over the speed limit. 625 ILCS 5/11-601.5.
Given this comprehensive statutory scheme, we believe
it clear that the Illinois legislature did not intend to
make it a felony to drive 20 miles per hour over the speed
limit simply because a police officer happens to be in
pursuit, rather than because the driver was inten-
tionally evading that officer.
Similarly, Illinois has enacted no separate offense for
causing injury while operating a vehicle. An individual
who follows all rules of the road and drives carefully, but
nevertheless somehow causes injury, has ordinarily
committed no crime. We do not believe that the
legislature intended to make this conduct criminal—and
felonious, at that—unless the driver actually knew about
the pursuit by an officer and was trying to flee.
Mr. Welch suggests that “imposing strict liability is
common where the legislature’s overriding concern is
to protect the public from injury.” Reply Br. 2-3. Of course,
the inquiry cannot be that simple; nearly all criminal
statutes are intended to protect the public from injury.
We are mindful that “[t]he existence of a mens rea is
the rule of, rather than the exception to, the principles
of Anglo-American criminal jurisprudence.” Staples v.
United States, 511 U.S. 600, 605 (1994) (quotation marks

12
(...continued)
for any person to do any act forbidden or fail to
perform any Act required in this Chapter.
625 ILCS 5/11-202.
22 No. 08-3108

and citation omitted, brackets and italics in original).
When interpreting federal statutes, the Supreme Court
has dispensed with the mens rea requirement in a
narrow class of statutes that it has termed “public wel-
fare” statutes. Id. at 606. A key consideration in deter-
mining whether a statute falls within this class is
whether a person would be surprised to learn that the
conduct criminalized is not an innocent act. Id. at 610;
see also Morissette v. United States, 342 U.S. 246, 260
(1952) (“In the interest of the larger good it puts the
burden of acting at hazard upon a person otherwise
innocent but standing in responsible relation to a
public danger.” (quotation marks and citation omitted)).
Illinois has gone a step further in taking the guess-work
out of the analysis. Its legislature has provided a statute
stating that the legislature must make its purpose clear
in order to create a strict liability crime punishable by
imprisonment.13

13
720 ILCS 5/4-9 provides:
A person may be guilty of an offense without having, as
to each element thereof, one of the mental states de-
scribed in Sections 4-4 through 4-7 if the offense is a
misdemeanor which is not punishable by incarceration
or by a fine exceeding $500, or the statute defining the
offense clearly indicates a legislative purpose to impose
absolute liability for the conduct described.
Driving under the influence, likened to a strict
liability crime in Begay v. United States, 553 U.S. 137, 145
(2008), evinces such a clear purpose because of a sub-
(continued...)
No. 08-3108 23

Traffic offenses have been held to be prime candidates
for strict liability because such offenses:
[r]esult in no direct or immediate injury to person
or property but merely create the danger or proba-
bility of it which the law seeks to minimize. While
such offenses do not threaten the security of the
state in the manner of treason, they may be re-
garded as offenses against its authority, for their
occurrence impairs the efficiency of controls
deemed essential to the social order as presently
constituted. In this respect, whatever the intent
of the violator, the injury is the same, and the
consequences are injurious or not according to
fortuity. Hence, legislation applicable to such
offenses, as a matter of policy, does not specify
intent as a necessary element.
People v. Teschner, 394 N.E.2d 893, 894-95 (Ill. App. Ct. 1979)
(quoting Morissette, 342 U.S. at 256) (brackets in original).
We must acknowledge that traffic offenses generally
are considered public welfare offenses, see id. at 895, and
that the offense at issue here is situated physically in
the Illinois Vehicle Code. Nevertheless, these factors

13
(...continued)
section of the statute that specifically precludes a
defense that use of the drug in question was lawful.
People v. Teschner, 394 N.E.2d 893, 895 (Ill. App. Ct.
1979). For the reasons stated in the text, we do not see
a clear intent to make aggravated fleeing a strict lia-
bility crime.
24 No. 08-3108

cannot control whether the offense requires a criminal
intent. The statute in question simply does not meet the
requirements imposed by the Illinois legislature before
the usual requirement of a criminal intent can be con-
sidered absent. There is certainly no specific indication
by the Illinois legislature that an intent requirement is
absent. Indeed, the entire statutory scheme indicates the
opposite. First, the non-aggravated form of the same
offense requires a criminal intent. It indeed would be
unusual for the legislature to require a specific intent to
punish the less serious degree of the violation, while
making the more serious violation an absolute liability
offense.14

14
We cannot accept Mr. Welch’s argument that Dean v. United
States, ___ U.S. ___, 129 S. Ct. 1849 (2009), requires a different
view. There, the Supreme Court declined to find an implied
mens rea requirement in a statute criminalizing discharge of a
firearm during a crime of violence. Mr. Welch notes that one
consideration relied on by the Court was that the statute also
criminalized the brandishing of a firearm during a crime of
violence, and “brandish[ing]” was a defined term; the statute
required that it be done “in order to intimidate” someone. Id.
at 1853. Thus, the “brandish” provision had an intent require-
ment that suggested the absence of an intent requirement
from the “discharge” provision to be intentional. Id. at 1854.
Similarly here, Mr. Welch argues, the offense of unaggravated
fleeing contains an intent term—“willfully”—while the aggra-
vated offense does not. Therefore, Mr. Welch contends, the
omission of an intent term from the aggravated offense must
have been intentional.
(continued...)
No. 08-3108 25

14
(...continued)
We note first that this consideration was just one among
many for the Court. In Dean, the statute’s use of the passive
voice also indicated that proof of intent was not required, id.
at 1853, and the presumption that proof of criminal intent is
required was not a factor in the case because, although “[i]t is
unusual to impose criminal punishment for the consequences
of purely accidental conduct,” “it is not unusual to punish
individuals for the unintended consequences of their unlawful
acts,” such as committing a robbery with a loaded gun, id. at
1855 (emphasis in original). Neither of these considerations
are relevant to the Illinois statute.
Additionally, the term “brandish” appeared in subsection (ii)
of the Dean statute (“if the firearm is brandished, be sentenced
to a term of imprisonment of not less than 7 years”), while
“discharge” appeared in subsection (iii) (“if the firearm is
discharged, be sentenced to a term of imprisonment of not less
than 10 years”). Id. at 1853 (citation omitted). The Court noted
that the subsections “explain how defendants are to be sen-
tenced” for the complete offense of using a firearm in relation
to a crime of violence or a drug trafficking crime. Id. (quota-
tion marks and citation omitted). The Illinois offenses of
aggravated and unaggravated fleeing, however, do not have
the same conceptual or structural relationship. They define two
separate offenses. The unaggravated offense appears in
Section 11-204 of the Illinois Vehicle Code and is a class A
misdemeanor; the aggravated offense appears in Section 11-
204.1 and is a class 4 felony.
Even without assistance from Dean, Mr. Welch may con-
tend that the omission of an explicit intent term from the
aggravated offense was intentional in light of the unaggravated
(continued...)
26 No. 08-3108

Secondly, deeming aggravated fleeing an absolute
liability offense would be incongruous with the general
scheme that Illinois has crafted to regulate driving a
motor vehicle within the state. Notably, the penalty for
aggravated fleeing is much more severe than for a
typical traffic offense. Even DUI is only a Class A misde-
meanor for the first two offenses, punishable by a maxi-
mum of one year in prison. 625 ILCS 5/11-501(c)(1),
(d)(1)(A), (d)(2)(A), 730 ILCS 5/5-4.5/55. Moreover, and
perhaps most importantly, the injury caused by ag-
gravated fleeing is simply not the same without intent:
Aggravated fleeing punishes, in part, the defiance of
police authority. If the driver is unaware of the officer
and not acting with an intent to flee, there is no defiance
to punish.

14
(...continued)
offense. However, the unaggravated and the aggravated offense
are not structured in the same way. The unaggravated offense
punishes one who:
wilfully fails or refuses to obey such direction [to stop],
increases his speed, extinguishes his lights, or other-
wise flees or attempts to elude the officer. . . .
625 ILCS 5/11-204.
The most natural reading of this provision is that “willfully”
modifies the first three clauses, all of which are forms of
“flee[ing] or attempt[ing] to elude the officer.” After all, in-
creasing speed and extinguishing lights are easily done unin-
tentionally. Because some drivers are quite inattentive, basic
failure to stop is also conceivably done unintentionally. Intent
turns these acts into something else: flight.
No. 08-3108 27

We recognize that some state statutes refer to “willful
fleeing.” See, e.g., Cal. Vehicle Code § 2800.1(a) (“Any
person who, while operating a motor vehicle and with
the intent to evade, willfully flees . . . .”); Idaho Code
Ann. § 49-1404(1) (“Any driver of a motor vehicle
who wilfully flees or attempts to elude a pursuing police
vehicle . . . .”). But given the common meaning of “flee,”
the presence of other Illinois statutes, and the general
presumption against strict liability crimes, we do not see
a clear intent on the part of the Illinois legislature to
impose strict liability.
Therefore, we conclude that the Illinois statute requires
purposeful conduct.1 5

3.
Having concluded that the Illinois statute requires
purposeful conduct, we now address whether the
conduct proscribed by the statute is violent and aggres-
sive as those terms are employed in the Supreme
Court’s recent interpretations of the ACCA. We begin
our inquiry by returning to the language of the statute.

15
In addition to the foregoing, the Government refers us to
the Illinois Pattern Jury Instructions, which indicate that
aggravated fleeing requires intent. Ill. Pattern Jury Instructions-
Crim. 23.03 (2000). These are not the law, however, and are
therefore entitled to little weight. See People v. Peete, 743 N.E.2d
689, 695 (Ill. App. Ct. 2001) (“Illinois pattern jury instructions
are not binding. [They] are used only when they accurately
state the law.”).
28 No. 08-3108

a.
The Illinois aggravated fleeing statute criminalizes
four distinct varieties of flight. In evaluating whether
this aggravated fleeing conduct is violent and aggressive,
our first task is to determine, if possible, the precise
offense with which we are concerned. Our approach to
this problem of divisibility was set out, in plenary
fashion, in United States v. Woods, 576 F.3d 400 (7th Cir.
2009); see also Shepard v. United States, 544 U.S. 13, 26
(2005). We must employ a categorical approach; we do
not look at the facts of the prior conviction. Rather, we
look only at the statutory definition of the crime. Woods,
576 F.3d at 403. In examining the elements of the crime,
we consider whether, in the ordinary case, they reflect a
violent felony. Id. at 404. When a statute may be violated
in several ways and only some of those ways constitute
a violent felony within the meaning of the ACCA, we
may consider a limited list of additional materials to
ascertain the precise branch of the statute which the
defendant violated: “the terms of the charging document,
the terms of a plea agreement or transcript of a colloquy
between judge and defendant . . . or to some comparable
judicial record of this information.” Id. at 404 (quotation
marks and citation omitted). This consultation is limited
to determining which branch of the statute the defendant
violated; it is not an examination of the defendant’s
conduct. Id. at 405.
The Illinois aggravated fleeing statute makes fleeing
from a police officer an aggravated offense if one of four
conditions are met. Those conditions are that the fleeing:
No. 08-3108 29

(1) is at a rate of speed at least 21 miles per hour
over the legal speed limit;
(2) causes bodily injury to any individual;
(3) causes damage in excess of $300 to property; or
(4) involves disobedience of 2 or more official traf-
fic control devices.
625 ILCS 5/11-204.1(a). In light of the principles that we
have set forth, this statutory scheme would appear, at
least on first reading, to present a difficult problem. The
record does not contain the state court papers pertaining
to the aggravated vehicular fleeing conviction. It does
contain a description of the offense in the PSR, but that
description is based on arrest reports. Arrest reports are
not authorized sources for divisibility purposes. Shepard,
544 U.S. at 16 (holding that a police report cannot be
considered to determine whether generic burglary was
committed). They cannot be made a permissible source
because they are referenced in a PSR. See United States v.
Hays, 526 F.3d 674, 678 (10th Cir. 2008); United States v.
Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2002) (en
banc). Therefore, under the circumstances here, we
must determine that all four branches constitute violent
felonies under Begay in order to conclude that ag-
gravated fleeing is a violent felony.
When we examine each of the branches, we note at the
outset that they fall into two subcategories. Branch one
(rate of speed at least 21 miles per hour over the legal
speed limit) and branch four (disobedience of two
or more traffic signals) describe the manner of the defen-
30 No. 08-3108

dant’s flight. On the other hand, branch two (causes
bodily injury to any individual) and branch three (causes
damage in excess of $300 to property) describe the
effect of the flight.
If the violent nature of the felony turned solely on
these factors, we might have significant difficulty in
categorizing the offense of aggravated fleeing as violent
and aggressive, as Begay and Chambers define those
terms. Branches one and four are the easier of the two
categories to reconcile with Begay and Chambers, but
even these are problematic. Fleeing at a pace well over the
speed limit or running through traffic signals reasonably
may be characterized as violent and aggressive acts,
comparable to brandishing a deadly weapon. They dem-
onstrate, it might be argued, a level of indifference to
human safety above and beyond the basic act of fleeing
and, in that respect, simply constitute specific, objective
examples of action that creates a substantial risk of
serious physical injury or death to any person.1 6 On the
other hand, under Illinois law, exceeding the speed limit
by 40 miles per hour is a misdemeanor;1 7 reckless
driving, which requires “willful or wanton disregard for
the safety of persons or property,” is a misdemeanor

16
See United States v. Hudson, 577 F.3d 883, 885 (8th Cir. 2009)
(holding that fleeing statute that prohibited fleeing in a manner
that “creates a substantial risk of serious physical injury or
death to any person” was a violent felony).
17
625 ILCS 5/11-601.5.
No. 08-3108 31

as well.18 Given these features of the Illinois code, it may
be difficult to maintain that exceeding the speed limit
by twenty miles an hour constitutes aggressive and
violent behavior.
Branches two and three speak to the results of the
flight, not its manner and are an even more problematic
basis for characterizing an offense as aggressive and
violent. While these results may indeed be the product
of aggressive and violent behavior, they can be the
results of other behavior as well. These results cannot be
considered an easy and identifiable proxy for the sort
of conduct that must form the basis of a violent felony
for purposes of the ACCA.
We believe, however, that there is another and more
appropriate approach to this Illinois statute that is more
in harmony with the intent of Congress in the ACCA
and with the interpretative decisions of the Supreme
Court. The Illinois statute before us, while requiring that
the conditions we have just described be met, also
requires, for all of these categories, that the defendant
intentionally flee a police officer after having been
signaled to stop. If this common underlying activity—the
very act of intentionally fleeing in defiance of the
officer’s command—constitutes an aggressive and violent
act, the crime is an aggressive and violent one, no matter
which of the categories we have discussed is also ap-
plicable. Indeed, those categories are, under this analytical
approach, simply limitations on the operation of the

18
625 ILCS 5/11-503.
32 No. 08-3108

statute that make it applicable only to certain intentional
flights from a police officer. However, if all intentional
flights against the orders of an officer are aggressive
and violent, those limitations are not relevant to our
inquiry under the ACCA.

b.
We turn then to an analysis of whether all intentional
flights against the order of a police officer are aggressive
and violent as those terms are employed in an analysis
of the ACCA.
This is not the first time that we have examined
whether intentional flight in defiance of a police officer’s
order is an aggressive and violent act. This question
was before us in Spells. In that case, we held that an
Indiana vehicular fleeing statute qualified as a violent
felony under the Begay framework. The Indiana statute
required that the offender “knowingly . . . flee[] from
the law enforcement officer after the officer has . . .
ordered the person to stop.” Spells, 537 F.3d at 749 (citation
omitted).
Our task therefore is to ascertain whether our decision
in Spells remains viable after the Supreme Court’s decision
in Chambers. An examination of Chambers makes clear
that it leaves Spells undisturbed. Chambers held that the
offense of failure to report to confinement is not a
violent felony. The other federal courts have extended
Chambers to cover a “walkaway” escape, where a prisoner
No. 08-3108 33

leaves unsecured custody such as a halfway house.1 9
Numerous courts have reaffirmed, however, that an
escape from secure custody is not analogous to failure to
report and, therefore, is not covered by Chambers. For
instance, the First Circuit held that “escape from secure
custody is a stealth crime that is likely to cause an
eruption of violence if and when it is detected. Therefore,
the ‘powder keg’ rationale still applies to such a crime.”
United States v. Pratt, 568 F.3d 11, 22 (1st Cir. 2009). The
Eighth Circuit has agreed. United States v. Pearson, 553
F.3d 1183, 1186 (8th Cir. 2009) (“Accordingly, Chambers
overrules this circuit’s precedent that all escapes—in-
cluding failures to return or report to custody—are
crimes of violence, but leaves intact our precedent

19
See United States v. Ford, 560 F.3d 420, 426 (6th Cir. 2009)
(“Ford committed a ‘walkaway’ escape, which no doubt may
create a greater risk of physical injury than a failure to report,
but which remains different from a jailbreak and other crimes
of violence both in kind and in its risk of physical injury to
others.”); United States v. Pappan, No. 07-8020, 2009 WL 489963,
at *4 (10th Cir. Feb. 27, 2009) (holding that escape statute is not
a violent felony where it can be violated if defendant signed
out of corrections facility for purpose of attending work but
failed to attend work); United States v. Lee, 586 F.3d 859, 874
(11th Cir. 2009) (“In sum, we hold that a non-violent walkaway
escape from unsecured custody is not [a violent felony].”);
United States v. Charles, 667 F. Supp. 2d 1246, 1258-59 (D. Kan.
2009) (treating walkaway escape as escape from non-secure
custody, and finding it not to be a crime of violence).
34 No. 08-3108

holding that escape from custody is a crime of violence.”).2 0
We also employed this rationale in Dismuke when we
stated: “Chambers implies that unlike a failure to report,
which does not have these characteristics [aggressive
conduct with potential for violence], an escape from
physical custody would [qualify as a violent felony].”
Dismuke, 593 F.3d at 595; see also Sykes, 2010 WL 843861,
at *3 (stating that Spells’s “reasoning has been im-
plicitly affirmed in Chambers”).
The conclusion that Chambers did not disturb our
holding in Spells is supported by the language of
Chambers, which explicitly distinguished failure to
report from escape from confinement. Chambers, 129 S. Ct.
at 691. Vehicular fleeing, the offense at issue here, is much
more similar to the latter. While failure to report is a
passive crime characterized by inaction, id. at 692, vehicu-
lar fleeing necessarily involves affirmative action on the
part of the perpetrator. As the Court pointed out, one

20
Also, since Chambers, the Fifth and Sixth Circuits have held
that fleeing by vehicle is a violent felony. United States v.
Harrimon, 568 F.3d 531, 534-35 (5th Cir. 2009); United States v.
Young, 580 F.3d 373, 377-78 (6th Cir. 2009). The Tenth Circuit
has reaffirmed an earlier decision to the same effect. United
States v. Wise, ___ F.3d ___, No. 08-4033, 2010 WL 775556, at *5-*6
(10th Cir. Mar. 9, 2010). The Eleventh Circuit, after Chambers,
has found aggravated fleeing to be a violent felony. United
States v. Harris, 586 F.3d 1283, 1288-89 (11th Cir. 2009). But
see United States v. Harrison, 558 F.3d 1280, 1296-98 (11th Cir.
2009) (relying in part on Chambers to hold that unaggravated
vehicular fleeing offense is not a violent felony).
No. 08-3108 35

who fails to report is not drawing attention to himself.
Id. Similarly, a walkaway can occur without being
detected until later. If an offender fails to report or
leaves while beyond the presence of security, there is no
immediate pursuit or other attempt to apprehend and
none of the risks attendant with an immediate pursuit.
By contrast, one who flees a police officer in a vehicle
draws attention to himself, challenges the immediate
authority of the police officer and calls on the officer to
give immediate chase. Whether the officer accepts that
invitation, the perpetrator takes action to elude capture
with his vehicle, action that, by its very nature, endangers
others. Indeed, Mr. Welch has emphasized that he does
not contest the risk of physical harm posed by vehicular
fleeing. Reply Br. 2 (“Welch has not argued that ag-
gravated fleeing does not present a serious potential risk
of injury to others.”).
Spells must be read, moreover, in light of our decision in
Dismuke. There, instead of simply relying on Spells, we
considered anew the application of Begay to vehicular
fleeing statutes. We specifically held “that the ‘violent and
aggressive’ limitation requires only that a residual-clause
predicate crime be characterized by aggressive conduct
with a similar potential for violence and therefore injury
as the enumerated offenses.” Dismuke, 593 F.3d at 594. We
understood Chambers as supporting this holding. Id. at 595.
We noted as well that, in Howze, we had held that vehicular
fleeing categorically posed a serious risk of physical
injury. Indeed, we reaffirmed that vehicular fleeing
presents a serious risk of physical injury to another. Id.
at 591 n.3. Spells’s holding that vehicular fleeing is aggres-
36 No. 08-3108

sive conduct is not only undisturbed but reaffirmed by
Dismuke. The same must be said of its holding that:
An individual’s purposeful decision to flee an
officer in a vehicle when told to stop, reflects that
if that same individual were in possession of a
firearm and asked to stop by police, [he] would
have a greater propensity to use that firearm in
an effort to evade arrest.
Spells, 537 F.3d at 752.
Spells, Dismuke and Sykes make clear that we stand with
the majority of circuits that have held that intentional
vehicular fleeing is a violent felony within the meaning
of the ACCA.21 Accordingly, we hold that the district
court correctly considered the defendant’s conviction for
aggravated vehicular fleeing a violent felony for pur-
poses of the ACCA.

C.
Mr. Welch submits that he received ineffective
assistance of counsel, at sentencing and on appeal, when
counsel failed to argue that, under Apprendi v. New Jersey,
530 U.S. 466 (2000), Mr. Welch’s prior nonjury juvenile
adjudication could not be used to enhance his sentence

21
See Wise, 2010 WL 775556, at *6; Young, 580 F.3d at 377-78;
Harrimon, 568 F.3d at 534-35; United States v. West, 550 F.3d
952, 971 (10th Cir. 2008). But see United States v. Tyler, 580 F.3d
722, 726 (8th Cir. 2009); Harrison, 558 F.3d at 1295.
No. 08-3108 37

beyond the statutory maximum. To succeed on this
claim, Mr. Welch must demonstrate that (1) counsel’s
performance was below an objective standard of reason-
ableness, and (2) but for the deficiency, there is a rea-
sonable probability that the outcome would have been
different. Strickland v. Washington, 466 U.S. 668, 688, 694
(1984). Because Mr. Welch must satisfy both prongs
in order to prevail, we need not reach the deficiency
inquiry because Mr. Welch has failed to establish prejudice.
Initially, the Government argues that Mr. Welch
suffered no prejudice from his counsel’s failure to raise
the issue at sentencing because Mr. Welch raised the
issue pro se. As a result, “[t]he district court carefully
considered the claim but ultimately rejected it.” Govern-
ment’s Br. 22. We cannot accept this argument. In his
written objections, Mr. Welch preserved the issue of
whether Almendarez-Torres v. United States, 523 U.S. 224
(1998), was correctly decided. Additionally, he asked
the court to “please consider that at the age of 16 I was
young and remiss[].” R.18 at 4. At the sentencing
hearing, the court understood Mr. Welch to be arguing
that it had discretion to decline to consider the juvenile
offense and that the offense did not meet the statutory
definition of violent felony; Mr. Welch confirmed this.
There was no specific Apprendi argument with respect
to the juvenile offense. We cannot say, therefore, that the
district court confronted squarely the issue that
Mr. Welch now raises.
In order to show Strickland prejudice, Mr. Welch must
show a reasonable probability that his underlying ar-
38 No. 08-3108

gument would have been accepted at the sentencing
hearing. Strictly speaking, this standard does not
require that we actually decide the merits of the under-
lying issue. However, in the context of this specific
issue, considerations of judicial economy counsel that
we address the underlying issue and decide it.
In Apprendi, the Supreme Court held that “[o]ther than
the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 530 U.S. at 490. Mr. Welch
contends that his prior juvenile adjudication, which was
not obtained by a jury, is not a “prior conviction” for
Apprendi purposes.2 2
The majority of circuits that have examined the
question of whether the absence of a jury trial prevents
the use of a juvenile adjudication to enhance a sentence
under the ACCA have concluded that there is no such
barrier.23 After studying the opinions of the circuits
that have addressed the matter, we join the majority.
When the Supreme Court carved out of its holding in
Apprendi an exception allowing for the use of prior con-

22
Mr. Welch pleaded guilty to his federal offense of conviction.
Because his juvenile adjudication was not charged in the
indictment, however, it may not be used to enhance his sentence
if it is subject to the Apprendi rule. Apprendi v. New Jersey,
530 U.S. 466, 476 (2000).
23
The ACCA explicitly permits the use of otherwise quali-
fying juvenile convictions to enhance sentences.
No. 08-3108 39

victions, the Court believed that the procedural safe-
guards surrounding such a conviction gave it sufficient
reliability that further protections were not required.
Specifically, the Court relied upon the “certainty that
procedural safeguards attached to any ‘fact’ of prior
conviction . . . mitigated the due process and Sixth Amend-
ment concerns otherwise implicated in allowing a judge
to determine a ‘fact’ increasing punishment beyond the
maximum statutory range.” Id. at 488. The Court further
said that:
there is a vast difference between accepting the
validity of a prior judgment of conviction entered
in a proceeding in which the defendant had the
right to a jury trial and the right to require the
prosecutor to prove guilt beyond a reasonable
doubt, and allowing the judge to find the required
fact under a lesser standard of proof.
Id. at 496.
Our colleagues in the Ninth Circuit were the first to
address whether the Supreme Court’s discussion in
Apprendi barred the use of any juvenile adjudication to
enhance a sentence under the ACCA. See United States v.
Tighe, 266 F.3d 1187 (9th Cir. 2001). A majority of the panel
took the view that the Supreme Court intended to bar
the use of such juvenile adjudications. In reaching its
conclusion, the Ninth Circuit found particularly con-
vincing a passage in the Supreme Court’s opinion in
Jones v. United States, 526 U.S. 227 (1999):
“One basis for that constitutional distinctiveness [of
prior convictions] is not hard to see: unlike virtually
40 No. 08-3108

any other consideration used to enlarge the possible
penalty for an offense . . . a prior conviction must itself
have been established through procedures satisfying the
fair notice, reasonable doubt and jury trial guarantees.”
Tighe, 266 F.3d at 1193 (quoting Jones, 526 U.S. at 249)
(brackets and emphasis in Tighe). The Ninth Circuit
concluded that the use of prior convictions to enhance a
sentence “was rooted in the concept that prior convic-
tions have been, by their very nature, subject to the funda-
mental triumvirate of procedural protections intended
to guarantee the reliability of criminal convictions: fair
notice, reasonable doubt and the right to a jury trial.” Id.
The Ninth Circuit also found guidance in the passage
from Apprendi that we have previously quoted:
“There is a vast difference between accepting the
validity of a prior judgment of conviction entered in a
proceeding in which the defendant had the right to a
jury trial and the right to require the prosecutor to
prove guilt beyond a reasonable doubt, and allowing
the judge to find the required fact under a lesser
standard of proof.”
Id. at 1194 (quoting Apprendi, 530 U.S. at 496).
Thus, the court concluded that “Apprendi’s . . . ‘prior
conviction’ exception is limited to prior convictions
resulting from proceedings that afforded the procedural
necessities of a jury trial and proof beyond a reasonable
doubt.” Id. Recognizing that juvenile adjudications
did not typically result from a jury trial, they were ex-
cluded.
No. 08-3108 41

The dissenting judge in Tighe took another view. For
the dissent, the language from Jones meant only that
“Congress has the constitutional power to treat prior
convictions as sentencing factors subject to a lesser stan-
dard of proof because the defendant presumably
received all the process that was due when he was con-
victed of the predicate crime.” United States v. Tighe,
266 F.3d 1187, 1200 (9th Cir. 2001) (Brunetti, J., dissenting).
The dissent reasoned that “where a juvenile received all
the process constitutionally due at the delinquency pro-
ceeding stage,” the resulting adjudication could be
used to justify an enhancement because “[t]o hold other-
wise would have required the court ‘to hold that the
enhancement of an adult criminal sentence requires a
higher level of due process protection than the imposition
of a juvenile sentence.’ ” Id. at 1198-99 (citation omitted).
With the benefit of the dialogue initiated by the thought-
ful writings in Tighe, our colleagues in many other
circuits have had subsequent opportunities to analyze
this issue. As we have noted previously, they have
found the dissenting position in Tighe to be more con-
vincing and, along the way, have refined the rationale
supporting that position. For instance, the Court of Ap-
peals for the Eighth Circuit expressed doubt that the
Supreme Court in Apprendi intended to establish a rigid
prerequisite for the definition of the sort of judgment of
conviction that would qualify for the exception to its
holding. The Eighth Circuit noted that “while the Court
established what constitutes sufficient procedural safe-
guards (a right to jury trial and proof beyond a rea-
42 No. 08-3108

sonable doubt), and what does not (judge-made findings
under a lesser standard of proof), the Court did not take
a position on possibilities that lie in between these two
poles.” United States v. Smalley, 294 F.3d 1030, 1032 (8th Cir.
2002). The Eighth Circuit did not interpret the Jones
passage as establishing a rigid definition of “prior con-
viction.” Id. Rather, the Eighth Circuit believed that
the proper inquiry was the overall reliability of a con-
viction—“whether juvenile adjudications, like adult
convictions, are so reliable that due process of law is not
offended by such an exemption.” Id. at 1033. The court
concluded that juvenile adjudications qualified for an
exemption from the Apprendi rule because defendants
in those proceedings have the right to notice, the right
to counsel, the right to confront witnesses, the right to
proof beyond a reasonable doubt and the privilege
against self-incrimination. Id. In its view, the use of a
jury “would ‘not strengthen greatly, if at all, the fact-
finding function.’ ” Id. (quoting McKeiver v. Pennsylvania,
403 U.S. 528, 547 (1971) (plurality opinion)).
In the wake of Smalley, several other circuits have
followed the same theme.2 4 The Fourth Circuit, for in-
stance, refused to say that the fact-finding process in

24
State courts have followed United States v. Smalley, 294 F.3d
1030 (8th Cir. 2002), as well. See State v. Weber, 149 P.3d 646, 653
(Wash. 2006); State v. McFee, 721 N.W.2d 607, 619 (Minn. 2006);
Ryle v. State, 842 N.E.2d 320, 323 (Ind. 2005); State v. Hitt, 42 P.3d
732, 740 (Kan. 2002). But see State v. Harris, 118 P.3d 236, 246 (Or.
2005); State v. Brown, 879 So.2d 1276, 1290 (La. 2004).
No. 08-3108 43

a judge-imposed juvenile adjudication was so suspect
that it could not be considered reliable when employed
to enhance a later criminal sentence. See United States v.
Wright, 594 F.3d 259, 264 (4th Cir. 2010). If a judge-
imposed juvenile adjudication is considered to be a con-
stitutionally sufficient basis for depriving a juvenile of
his liberty for a significant period of time, reasoned the
court, there is no need to consider that adjudication
“off limits for sentencing consideration if the same
juvenile later violates § 924(e)’s armed career criminal
prohibition.” Id. “As a jury is not required in a juvenile
adjudication on the merits, we see no reason to
impose such a requirement through the back door by
allowing former juveniles who have subsequently
reached adulthood to overturn their adjudications in
subsequent sentencing hearings.” Id. at 263-64; see also
United States v. Crowell, 493 F.3d 744, 750 (6th Cir. 2007)
(“Juvenile adjudications, where the defendant has the
right to notice, the right to counsel, the privilege
against self-incrimination, the right to confront and cross-
examine witnesses, and the right to a finding of guilt
beyond a reasonable doubt, provide sufficient pro-
cedural safeguards to satisfy the reliability require-
ment that is at the heart of Apprendi.”). This same
rationale found acceptance in the Third and Eleventh
Circuits. See United States v. Jones, 332 F.3d 688, 696 (3d Cir.
2003) (“It follows that if Lester Jones was afforded all
the procedural safeguards that he is constitutionally
due, the District Court properly enhanced his sentence
pursuant to the ACCA.”); United States v. Burge, 407
F.3d 1183, 1190 (11th Cir. 2005) (“We base our holding
44 No. 08-3108

on the reasoning of our sister circuits in Smalley and
Jones.”).25
We agree with these circuits that a prior juvenile adjudi-
cation is a “prior conviction” under Apprendi. We do not
believe Apprendi or Jones signals the Supreme Court’s
distrust of the factual integrity of juvenile adjudications
that conform to the constitutional requirements for
such proceedings. See McKeiver, 403 U.S. at 528; In re
Winship, 397 U.S. 358 (1970); In re Gault, 387 U.S. 1 (1967).
In this respect, we note that the Court in Apprendi stated:
If a defendant faces punishment beyond that
provided by statute when an offense is committed
under certain circumstances but not others, it is
obvious that both the loss of liberty and the stigma
attaching to the offense are heightened; it necessar-
ily follows that the defendant should not—at the
moment the State is put to proof of those circum-
stances—be deprived of protections that have,
until that point, unquestionably attached.
530 U.S. at 484. We believe that this passage is best read
as requiring that a defendant must receive all the
protections to which he is entitled. Prior convictions
are not subject to the Apprendi rule if the defendant re-
ceived all the protections to which he was constitu-

25
The First Circuit also has permitted the use of juvenile
adjudications to enhance a sentence, but that case does not
inform our inquiry because it confronted a situation where
state law provided juveniles with the right to a jury trial. United
States v. Matthews, 498 F.3d 25, 35 (1st Cir. 2007).
No. 08-3108 45

tionally entitled, and the integrity of the fact-finding
procedures are thereby ensured. There can be no doubt
that the Supreme Court’s jurisprudence has been vigilant
with respect to the fact-finding processes of juvenile
proceedings. “The same considerations that demand
extreme caution in factfinding to protect the innocent
adult apply as well to the innocent child.” Winship, 397
U.S. at 365. Nevertheless, although emphasizing that a
“proceeding where the issue is whether the child will be
found to be ‘delinquent’ and subjected to the loss of his
liberty for years is comparable in seriousness to a felony
prosecution,” Gault, 387 U.S. at 36, the Supreme Court
clearly has held that juvenile adjudications meet con-
stitutional standards even when they do not include a
jury trial, McKeiver, 403 U.S. at 545-47. We agree with
other circuits that the protections juvenile defendants
receive—notice, counsel, confrontation and proof beyond
a reasonable doubt—ensure that the proceedings are
reliable.
Therefore, because juvenile adjudications are reliable,
they are not subject to the Apprendi rule. Because
Mr. Welch’s juvenile conviction was admissible to
enhance his sentence under the ACCA, he was not preju-
diced by the failure of his attorney to argue the con-
trary. Accordingly, his ineffective assistance of counsel
claim must fail.

Conclusion
Mr. Welch’s prior conviction for the Illinois offense
of aggravated fleeing or attempting to elude a police
46 No. 08-3108

officer was properly treated as a “violent felony” under
the ACCA, as was his prior juvenile adjudication. His
sentence therefore was imposed in accordance with
governing legal principles, and the judgment is ac-
cordingly affirmed.
A FFIRMED

P OSNER, Circuit Judge, dissenting. The defendant
pleaded guilty to a charge of illegal possession of a gun
by a felon, in violation of 18 U.S.C. § 922(g)(1), for
which the maximum prison sentence ordinarily would
have been 120 months. 18 U.S.C. § 924(a)(2). But the
judge, because he found that the defendant had prior
convictions for three “violent felonies,” was required by
the Armed Career Criminal Act to impose a sentence of at
least 15 years, 18 U.S.C. § 924(e)(1), and did so. We af-
firmed in an unpublished order. United States v. Welch,
No. 06-3385 (7th Cir. Feb. 21, 2007). The following year
the defendant moved to vacate his sentence under
28 U.S.C. § 2255. One ground of his motion was that
his lawyer had rendered ineffective assistance to him
in failing to challenge the use of two of the “violent
felony” convictions—a juvenile conviction and a convic-
tion for “aggravated fleeing”—to increase his sentence.
No. 08-3108 47

There is no doubt that the lawyer was ineffective in
failing on appeal to challenge the use of the juvenile
conviction. That was a substantial issue, which had never
been resolved by this court, while the only other issue
he raised on appeal related to drug testing in the period
of supervised release that will follow the defendant’s
release from prison, an issue of little consequence in view
of the length of his sentence. My colleagues have elided
the issue of ineffective assistance by addressing the
merits of the challenge to the use of the juvenile convic-
tion and holding that the challenge fails, so that the
defendant wasn’t harmed by the lawyer’s inadequacy.
And the government concedes that the status of aggra-
vated fleeing under the Armed Career Criminal Act is
independently reviewable under 28 U.S.C. § 2255(f)(3)
in light of the Supreme Court’s decision in Begay v.
United States, 553 U.S. 137 (2008), because, as a result of
that decision, there is “a significant risk that [the] defen-
dant . . . faces a punishment that the law cannot impose
upon him.” Schriro v. Summerlin, 542 U.S. 348, 352 (2004).
I don’t think that either the juvenile conviction or the
conviction for aggravated fleeing was a conviction of a
“violent felony” within the meaning of the Armed Career
Criminal Act.
At age 16 the defendant was adjudged in an Illinois
juvenile court to have attempted an armed robbery. He
had no right to trial by jury. 705 ILCS 405/5-101(3);
People v. Taylor, 850 N.E.2d 134, 140 (Ill. 2006). The
Supreme Court had ruled in Apprendi v. New Jersey, 530
U.S. 466, 490 (2000), that “other than the fact of a prior
conviction, any fact that increases the penalty for a
48 No. 08-3108

crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a rea-
sonable doubt,” unless the defendant waived these
rights. See also Shepard v. United States, 544 U.S. 13, 24-26
(2005); United States v. Browning, 436 F.3d 780 (7th
Cir. 2006). An initial question is whether the judgment in
the defendant’s juvenile-court proceeding was a “prior
conviction” for Apprendi purposes. Technically it was not
a “conviction” at all, because in Illinois as in other states
a juvenile-court proceeding, though it often results in
a period of confinement (imprisonment by another
name), is not deemed a criminal proceeding. People v.
Taylor, supra, 850 N.E.2d at 141. And “because
delinquency proceedings are not criminal proceedings,
not all criminal safeguards have been employed in the
juvenile proceeding. For example, a minor has no right
to a jury trial, in part, because a jury trial would invest
a juvenile proceeding with the appearance and form of
a criminal trial.” In re R.G., 669 N.E.2d 1225, 1227 (Ill.
App. 1996). Obviously, though, such a proceeding is
more akin to a criminal proceeding than to a conven-
tional civil proceeding when the minor’s liberty is at
stake. See id. at 1227-28; see also State v. Bloomer, 909
N.E.2d 1254, 1266 (Ohio 2009). It is best described as
“quasi-criminal,” as in In re B.L.D., 113 S.W.3d 340,
351 (Tex. 2003).
The Supreme Court has held that no jury is required in
a juvenile case, even though the outcome of such a case
may well be imprisonment. McKeiver v. Pennsylvania, 403
U.S. 528 (1971). The Court noted the “idealistic” hope
that the rehabilitation of juvenile offenders would be
assisted by avoiding the criminal label and the crim-
No. 08-3108 49

inal courts, and while recognizing the failure of the move-
ment to live up to its ideals, the Court decided not
to terminate the experiment by requiring that all ele-
ments of criminal procedure be followed in juvenile
proceedings. Id. at 545-51 (plurality opinion).
But whether a juvenile can be imprisoned on the basis
of findings made by a juvenile-court judge rather than
by a jury is different from whether a “conviction” so
procured (if it should even be called a “conviction”) is the
kind of “prior conviction” to which the Court referred
in Apprendi, namely a conviction that can be used to jack
up a person’s sentence beyond what would otherwise
be the statutory maximum. The government doesn’t
even argue that it should be usable for this purpose;
its entire argument is that because all but one of the cir-
cuits to have opined on the issue deem a juvenile-
court “conviction” a “prior conviction” within the
meaning of Apprendi—compare United States v.
Crowell, 493 F.3d 744, 749-51 (6th Cir. 2007); United States
v. Burge, 407 F.3d 1183, 1187-91 (11th Cir. 2005); United
States v. Jones, 332 F.3d 688, 696 (3d Cir. 2003); and
United States v. Smalley, 294 F.3d 1030, 1031-33 (8th Cir.
2002); see also United States v. Matthews, 498 F.3d 25, 32-36
(1st Cir. 2007), with United States v. Tighe, 266 F.3d 1187,
1191-95 (9th Cir. 2001)—the failure of the defendant’s
lawyer to raise the issue didn’t hurt the defendant be-
cause we would be unlikely to reject the majority posi-
tion. That is a feeble argument, since our court does not
mechanically decide a case on the basis of the circuit score-
card, without independent consideration of the issues.
50 No. 08-3108

The sentence I quoted from Apprendi implies that a
prior conviction used to increase the length of the sen-
tence must be the outcome of a proceeding in which the
defendant had a right to have a jury determine his
guilt. Otherwise why does the Supreme Court require
that any fact, as distinct from a conviction, used to
enhance a sentence be a fact found by a jury (unless of
course the defendant waived a jury)? Why didn’t the
Court just say that the fact must be found by a reliable
means? Why in Jones v. United States, 526 U.S. 227, 249
(1999), decided the year before Apprendi, had the Court
said that “one basis for that constitutional distinctiveness
[of prior convictions] is [that] unlike virtually any
other consideration used to enlarge the possible penalty
for an offense . . . a prior conviction must itself have
been established through procedures satisfying the fair
notice, reasonable doubt and jury trial guarantees” (em-
phasis added)?
The Court in Apprendi did not take this back when
it said that “if a defendant faces punishment beyond
that provided by statute when an offense is committed
under certain circumstances but not others, it is obvious
that both the loss of liberty and the stigma attaching
to the offense are heightened; it necessarily follows that
the defendant should not—at the moment the State is
put to proof of those circumstances—be deprived of
protections that have, until that point, unquestionably at-
tached.” 530 U.S. at 484 (emphasis added). The defendant
in this case was not “deprived of protections” that had
attached to his juvenile-court proceeding. But that is not
enough. The Court in Apprendi, unwilling to overrule
No. 08-3108 51

Almendarez-Torres v. United States, 523 U.S. 224 (1998),
which permitted recidivist enhancements without re-
quiring a trial in the new case to determine the
defendant’s guilt of an offense used to enhance his sen-
tence, created a narrow exception to the requirement
that facts that increase the statutory maximum sen-
tence must be determined by a jury. The exception
requires that the defendant’s conviction of the prior
offense have been established by a process in which
he had had a right to a jury. The defendant in this
case didn’t have that right.
The constitutional protections to which juveniles have
been held to be entitled have been designed with a dif-
ferent set of objectives in mind than just recidivist en-
hancement. So the mere fact that a juvenile had all the
process he was entitled to doesn’t make his juvenile
conviction equivalent, for purposes of recidivist enhance-
ments, to adult convictions.
Suppose a military commission convicted a suspected
terrorist of a military crime, in a proceeding in which
the defendant had not been entitled to all the rights he
would have been entitled to in a conventional criminal
proceeding, such as the right to a jury. Would it follow
that because he had received all the rights to which
military law entitled him, his conviction could be used
to enhance a later conviction of a conventional crime?
To answer in the affirmative would stretch Apprendi
awfully far.
The Supreme Court’s opinion in McKeiver had acknowl-
edged that the juvenile courts are a mess, and subsequent
52 No. 08-3108

research confirms that their noncriminal “convictions”
may well lack the reliability of real convictions in
criminal courts. Steven A. Drizin & Greg Luloff, “Are
Juvenile Courts a Breeding Ground for Wrongful Con-
victions?” 34 N. Ky. L. Rev. 257 (2007); Barry C. Feld,
“The Constitutional Tension Between Apprendi and
McKeiver: Sentence Enhancements Based on Delinquency
Convictions and the Quality of Justice in Juvenile Courts,”
38 Wake Forest L. Rev. 1111, 1161-77 (2003); Martin
Guggenheim & Randy Hertz, “Reflections on Judges,
Juries, and Justice: Ensuring the Fairness of Juvenile
Delinquency Trials,” 33 Wake Forest L. Rev. 553, 564-
82 (1998); Bluhm Legal Clinic, “W hy Youth
Contributes to Wrongful Convictions,” http://cwcy.org/
WhyYouthContributes.aspx (visited Apr. 8, 2010). We
learn from this literature that lawyers in juvenile
courts are overloaded with cases, that they often fail to
meet with their clients before entering a guilty plea and
often rely on parents and on the child defendant
himself to contact witnesses, and that they rarely file
pretrial motions. And because the philosophy on which
the juvenile court system was founded emphasizes pro-
tecting the “best interests of the child” and rehabilitating
rather than punishing the child, the culture of the
juvenile courts discourages zealous adversarial advocacy
even though in its current form the juvenile justice
system is much more punitive than its founders envis-
aged. Lawyers also appear to be reluctant to appeal
juvenile cases and to seek postconviction relief; heavy
caseloads, a prevalent view that appeals undermine
the rehabilitation process, and an absence of awareness
No. 08-3108 53

among juveniles of their appeal rights are the likely
reasons for this reluctance.
Of particular relevance to Apprendi, the literature finds
that judges are more likely to convict in juvenile cases
than juries are. They are exposed to inadmissible
evidence; they hear the same stories from defendants
over and over again, leading them to treat defendants’
testimony with skepticism; they become chummy with
the police and apply a lower standard of scrutiny to the
testimony of officers whom they have come to trust;
and they make their decisions alone rather than as a
group and so their decisions lack the benefits of group
deliberation. It would be hasty to conclude that juvenile-
court judges are more prone to convict the innocent than
juries are. But if it is true that juvenile defendants fare
worse before judges than they would before juries—if
there is reason to think that trial by jury would alter
the outcomes in a nontrivial proportion of juvenile cases—
one cannot fob off the Apprendi argument with the ob-
servation that a jury makes no difference.
Only the Supreme Court can decide authoritatively
what its decisions mean. But the government’s inability
to give a reasoned basis for that position is telling, and
the better view, I believe, is that a juvenile court “convic-
tion” is not usable for enhancing a federal sentence.
As for the defendant’s second supposed “violent
felony”— “aggravated fleeing”—the other circuits are split
over its proper classification. Compare United States v.
Wise, 597 F.3d 1141, 1148 (10th Cir. 2010); United
54 No. 08-3108

States v. LaCasse, 567 F.3d 763, 765-67 (6th Cir. 2009); United
States v. Harrimon, 568 F.3d 531, 534-37 (5th Cir. 2009); see
also United States v. Hudson, 577 F.3d 883 (8th Cir. 2009),
holding that it is a violent felony, with United States v.
Harrison, 558 F.3d 1280, 1290-96 (11th Cir. 2009), and United
States v. Tyler, 580 F.3d 722, 724-26 (8th Cir. 2009), holding
that it is not; see also United States v. Rivers, 595 F.3d 558,
564-65 (4th Cir. 2010). (Tyler, which did not cite Hudson,
created a split within the Eighth Circuit.) Wise, Hudson,
and Tyler are applications of section 4B1.2 of the federal
sentencing guidelines rather than of the Armed Career
Criminal Act, but “crime of violence” in the guidelines
section is interpreted identically to “violent felony” in the
Act. United States v. Templeton, 543 F.3d 378, 380 (7th
Cir. 2008).
Our court has lined up with the courts that deem “ag-
gravated fleeing” a “violent felony” within the meaning
of the Armed Career Criminal Act. United States v.
Sykes, 598 F.3d 334, 335 (7th Cir. 2010); United States v.
Dismuke, 593 F.3d 582, 590-96 (7th Cir. 2010); United States
v. Spells, 537 F.3d 743, 747-53 (7th Cir. 2008). These deci-
sions are questionable in light of Chambers v. United
States, 129 S. Ct. 687 (2009), where the Supreme Court
held that the form of “escape” that consists merely of
failing to report to prison on schedule to begin serving
one’s sentence is not a “violent felony.” Neither is a
walkaway escape. See, e.g., United States v. Hart, 578 F.3d
674, 680-81 (7th Cir. 2009); United States v. Templeton, supra,
543 F.3d at 383; United States v. Lee, 586 F.3d 859, 868-74
(11th Cir. 2009); United States v. Hopkins, 577 F.3d 507, 512-
No. 08-3108 55

15 (3d Cir. 2009); United States v. Charles, 576 F.3d 1060,
1066-69 (10th Cir. 2009).
Typically the walkaway escapee begins his flight on
foot but soon switches to a vehicle, while in aggravated
fleeing a person disregards a signal or command from a
police officer in a police car to pull over. Sometimes he
flees at a dangerously high speed, but the offense in
Illinois requires only that in the course of flight he
disobey at least two “official traffic control devices.” 625
ILCS 5/11-204.1(a)(4). That includes not only red lights
and stop signs but also such less imperative traffic
control devices as signs that say “slow down,” “yield
right of way,” and “no right turn on red light between
7 a.m. and 7 p.m.”
Aggravated fleeing is more dangerous on average
than walkaway escapes or failures to report, but we
know from Begay v. United States, supra, that dangerous-
ness is not enough to render a crime a “violent felony.”
Begay involved driving under the influence of alcohol
or drugs, and the Court held that such conduct is not a
violent felony even though it is dangerous. Is aggravated
fleeing more dangerous? When it takes the form of
running a couple of stop signs, perhaps late at night
when there is no other traffic on the road, it may well
be less dangerous than the average DUI case. Who
knows? But in any event, Begay requires that the offense
not only create a danger comparable to the dangers
created by the offenses enumerated in the Armed
Career Criminal Act (arson, burglary, extortion, and use
of explosives to commit a crime) but also further
56 No. 08-3108

resemble them in involving “purposeful, violent, and
aggressive” conduct.
The test is difficult to apply. It is unclear what “aggres-
sive” adds to “violent” (the Court didn’t say), except in a
case of defensive use of force, which ordinarily is not
criminal at all, although it can be, as in a case in which a
person is unreasonable in believing (though it is an
honest belief) that he must use deadly force to defend
himself. It is not even clear what “purposeful” adds to
the definition of “violent felony” since even strict-
liability crimes are “purposeful” in the sense that a de-
liberate act is involved. Sex with an underage girl is a
crime even if the perpetrator thinks her of age, but the
sexual act itself is deliberate.
Thus I don’t agree that just because the defendant
intended to flee from the police his action was “pur-
poseful” within the meaning of the Supreme Court’s
formula. Given that the purpose of the catch-all provi-
sion in the Armed Career Criminal Act is to enable
courts to identify crimes that are similar to the
enumerated ones, “purposeful” should be interpreted to
mean trying to harm a person’s person or property,
which is characteristic of the enumerated crimes.
Burglary requires proof of intent to commit a crime
following unlawful entry, arson proof of intent to
destroy property without legal authority, extortion proof
of intent to obtain another person’s property by a threat.
These crimes do not merely create a risk of harm, as
aggravated fleeing does.
It’s not that the enumerated crimes necessarily are
motivated by a desire to hurt anyone. The criminal may
No. 08-3108 57

simply want the victim’s property. (In an arson case, the
victim is often an insurance company—and arsonists
don’t dislike insurance companies—rather the contrary!)
But to get what he wants he has to harm the victim;
purpose to harm is intrinsic to the crime although it
often is not the motive. That is not true in a flight
case any more than it is true in a DUI case. In both the
perpetrator is behaving in a dangerous manner but in
neither is he trying to take anything from anyone or
otherwise harm anyone. And “although the [fleeing]
statute does require intent, the required mental state is
only intent to be free of custody, not intent to injure or
threaten anyone. It is easy to violate [such a statute]
without intending or accomplishing the destruction of
property or acting in an aggressive, violence-provoking
manner that could jeopardize guards or bystanders.”
United States v. Templeton, supra, 543 F.3d at 383.
Dismuke calls aggravated fleeing “aggressive” because
it involves defiance of authority. 593 F.3d at 595. But that
is true of all escapes—the point of Chambers was that we
can’t treat all escapes alike. Dismuke calls fleeing “active”
rather than “passive,” id., but all actions are active, yet
most are not aggressive. To fail to report to prison when
ordered is to defy the authority of the sentencing judge
and the Bureau of Prisons. Many acts of civil disobedience
are emphatically active and defiant of authority at their
core, but are miles away from being aggressive. Dismuke
notes the possibility of a future confrontation with au-
thority but that is also a likely consequence of a walk-
away escape or a failure to report and is an especially
likely consequence of many acts of civil disobedience.
58 No. 08-3108

Adopting a rule that would exclude from the category
of “violent felony” a crime that while it may be
dangerous does not involve any intention of harming
anyone would go some distance toward clarifying the
meaning of “violent felony” and by doing so perhaps
check the avalanche of litigation over that meaning.
Echoing Dismuke, the majority opinion in the present
case tries to distinguish fleeing from an officer from a
walkaway escape or failure to report by describing each
of the latter offenses as a “passive crime characterized by
inaction,” which might not be detected or provoke an
immediate pursuit, in contrast to “vehicular fleeing
[which] necessarily involves affirmative action on the
part of the perpetrator” and “challenges the immediate
authority of the police officer and calls on the officer to
give immediate chase.” But both a walkaway escape and
a failure to report are challenges to authority; and while
the failure to report does involve “inaction” rather than
(affirmative) action, a walkaway escape does not. I don’t
understand what “immediate authority” means and
I disagree that the fleer “call[s] on the officer to give
immediate chase”; he would much prefer that the
officer not give chase and doubtless in some cases the
officer does not.
Only the Supreme Court can resolve the issues pre-
sented in this appeal. But pending the Court’s interven-
tion I am persuaded that the defendant’s sentence is
illegal.

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