The Supreme Court waded back into the murky waters of the Armed Career Criminal Acct (“ACCA”) today with its decision in United States v. Chambers. The defendant in Chambers had argued that his prior conviction for his failure to report to a penal institution, which the Seventh Circuit treated as a predicate “violent felony” under the ACCA, should not be treated the same as an escape. The Supreme Court agreed, noting that a failure to report is a different crime than escape.

In reaching its holding, the Court noted that “[t]he behavior that likely underlies a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody.” Indeed, the Court relied in part of a study conducted by the United States Sentencing Commission to support its holding, remarking that “the study strongly supports the intuitive belief that failure to report does not involve a serious potential risk of physical injury.”

Although the Court resolved the issue presented in this case, the concurring opinion written by Justice Alito astutely noted the difficulty in interpreting the ACCA and applying the categorical approach in general. As he noted, “[a]fter almost two decades with Taylor’s ‘categorical approach,’ only one thing is clear: ACCA’s residual clause is nearly impossible to apply consistently.” As most practitioners can readily attest, Justice Alito’s concerns over the ACCA are well taken. Despite having the opportunity in recent cases like James, Begay, and Chambers, the Supreme Court has injected little clarity into the process of interpreting the residual clause of the ACCA. Although the convoluted area of law may stymy efforts at predictably interpreting the ACCA and the guidelines treatment of “crimes of violence,” this ambiguity fortunately endows defense practitioners with the ability to creatively attack the use of prior convictions.