In the 2008 case of James Eric Moore v. United States, the U.S Supreme Court examined whether a defendant's prior conviction for driving under the influence (DUI) could be considered a violent felony and thus warrant an enhanced sentence under the Armed Career Criminal Act (ACCA). The ACCA imposes a fifteen-year mandatory minimum sentence on defendants with three previous convictions for serious drug offenses or violent felonies who are found guilty of being in possession of a firearm. Moore had been convicted four times previously for DUIs in New Mexico, which were classified as felonies due to their repetitive nature. However, he argued that these should not count as violent felonies under ACCA guidelines. The court ruled against him stating that while DUI is not purposefully violent, it does present serious potential risk of physical injury to another person; therefore qualifying it as a "violent felony" within ACCA’s definition.

In the dissenting opinion for James Eric Moore v. United States, Justice Scalia disagreed with the majority's interpretation of the Armed Career Criminal Act (ACCA). He argued that ACCA should not be applied to Moore because his prior convictions did not meet the criteria set forth in ACCA. According to Scalia, a crime qualifies as a violent felony under ACCA only if it involves conduct that presents a serious potential risk of physical injury to another and is similar in kind and degree of risk posed by its enumerated offenses. In this case, failure to report for penal confinement does not inherently involve such conduct or pose such risks; therefore, it cannot be considered a violent felony under ACCA. Furthermore, he criticized the majority’s approach which allows courts broad discretion in determining what constitutes an "ordinary case" when assessing whether an offense poses substantial risk – arguing this leads to arbitrary and unpredictable results.