United States v. Ford

FILED
United States Court of Appeals
Tenth Circuit

July 27, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 09-2244
v.

STEVEN ANTHONY FORD,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 1:08-CR-00229-JEC-2)

Gregory J. Fouratt, United States Attorney, (Terri J. Abernathy, Assistant United
States Attorney, on the brief), Las Cruces, New Mexico, for Plaintiff - Appellee.

David L. Plotsky of Plotsky & Dougherty, Albuquerque, New Mexico, for
Defendant - Appellant.

Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
LUCERO, Circuit Judge.

KELLY, Circuit Judge.

Defendant-Appellant Steven Anthony Ford was convicted by a jury of

being a felon in possession of firearms and ammunition, 18 U.S.C. § 922(g)(1),

being a fugitive in possession of firearms and ammunition, 18 U.S.C. § 922(g)(2),
and possession of stolen firearms, 18 U.S.C. § 922(j). At sentencing, the district

court applied a six-level offense enhancement for assaulting a law enforcement

officer during flight, under U.S.S.G. § 3A1.2(c)(1), and found that Mr. Ford’s

prior convictions mandated a fifteen-year minimum sentence under the Armed

Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The court sentenced Mr. Ford

to 360 months’ imprisonment on the first count, and 120 months on each of the

other two counts, all to run concurrently. Our jurisdiction arises under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a), and we affirm.

Background

Mr. Ford was serving a state sentence at a Kansas prison until the night of

October 28, 2007. 2 R. 20-23. On that night, Mr. Ford and Jesse Lee Bell, a

fellow inmate, escaped with the aid of Amber Goff, a former corrections officer

with whom Mr. Ford was romantically involved. Ms. Goff had helped Mr. Ford

plan the escape. 3 R. 165-70. In preparation, she stole her stepfather’s .40

caliber Glock, .22 caliber pistol, and .357 revolver, obtained other supplies such

as ammunition and changes of clothes, and rented a getaway car. On the evening

of October 28, Mr. Ford called Ms. Goff to set their plan into action. Id. at 170-

79, 188. She left the rental car at a nearby shopping center and drove to the

prison in her own car. She used bolt cutters to open a gate across an access road,

and then drove up to prison’s dual perimeter fences. There, she cut through the

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exterior fence, tossed the Glock and a set of bolt cutters over the interior fence,

and left the .357 on the ground for Mr. Ford and Mr. Bell. Id. at 179-82. Ms.

Goff retreated to a hiding place, until she saw the two escapees headed her way,

already through the fence. They got in the back seat of the car, each carrying a

gun. Ms. Goff then drove the group to the shopping center, where they

transferred to the rental car and headed west. Id. at 182-84.

During the drive west, Mr. Ford often kept the Glock loaded and tucked in

his waistband or in the glove compartment, and shot it from the moving vehicle at

one point. At a stop in eastern New Mexico, the trio saw a story about

themselves in USA Today. Concerned that police would connect Ms. Goff and

the rental car, they decided to find another vehicle. Id. at 185-90. In the early

hours of October 31, they entered Grants, New Mexico, looking for a car to steal

in areas where people frequently come and go. They settled on an apartment

complex. Mr. Bell and Mr. Ford, with the Glock in Mr. Ford’s waistband, left the

car to walk around the apartment complex. The men returned to the car about

twenty minutes later, but at the arrival of a police car they instructed Ms. Goff to

leave for a while. Police arrested Ms. Goff several blocks away. Id. at 192-95.

A resident of the apartment complex had seen two men looking into her car

and called the police. Id. at 10. Two officers responded. After speaking to the

resident, the officers patrolled the complex. In one indoor hallway, they saw two

men. When the officers made eye contact with the men, the men stopped and then

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walked away quickly. The officers split up, and one officer saw the men running

away from the apartment building. After unsuccessfully trying to scale a fence,

the two men separated. One of the officers apprehended Mr. Bell in a field next

to the apartment complex. A few minutes after the other officer joined him, they

heard four gunshots fired at a “very close” range. The officers immediately

ducked down and ordered Mr. Bell to the ground. The officers reported the shots

by radio and requested backup. A sheriff’s deputy responded and apprehended

Mr. Ford in the apartment complex parking lot. Id. at 18-29.

A police detective found shell casings from the Glock about 100 feet from

where the officers apprehended Mr. Bell. Id. at 130. Police recovered the Glock

about 34 feet from where Mr. Ford was apprehended and found a .22 pistol on

Mr. Bell. Id. at 28-29, 130.

On appeal, Mr. Ford challenges: (1) the admission of evidence of his escape

from prison; (2) the § 3A1.2 enhancement for assaulting a law enforcement

officer during flight; and (3) the finding that a prior Kansas conviction for

criminal discharge of a firearm at an occupied building or dwelling qualifies as a

violent felony, triggering the ACCA’s fifteen-year mandatory minimum sentence.

We address the issues in that order.

Discussion

I. Admission of Evidence of the Kansas Escape

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 Mr. Ford challenges the district court’s admission of evidence of his

Kansas escape as res gestae and not barred by Federal Rule of Evidence 403. We

review evidentiary rulings for an abuse of discretion. United States v. Batton,

602 F.3d 1191, 1196 (10th Cir. 2010). After considering motions in limine, the

district court allowed the government to introduce evidence of Mr. Ford’s escape

from prison. The court found the evidence admissible under the doctrine of res

gestae because it was “inextricably intertwined with the charged crimes,”

particularly “the elements of Defendant being a fugitive from justice, that

Defendant possessed stolen firearms and ammunition, and that Defendant had

knowledge that the firearms and ammunition were indeed stolen.” 1 R. 56.

Alternatively, the court would have allowed the evidence as extrinsic evidence

offered for a proper purpose under Rule 404(b). Id. at 57-58.

The jury learned of Mr. Ford’s escape through the testimony of two

witnesses: Todd Kuzusko, a deputy United States marshal, and Ms. Goff, the

former corrections officer who helped him escape. Mr. Kuzusko testified that Mr.

Ford initiated a conversation while Mr. Kuzusko guarded him during a hospital

visit. Mr. Ford related to Mr. Kuzusko the details of his escape and his capture,

establishing that Mr. Ford was a fugitive and that he fired a gun during the police

chase in Grants. 3 R. 89-96. Ms. Goff recounted her relationship with Mr. Ford,

their planning of the escape, and the events from the escape until their capture in

Grants. This testimony established that Mr. Ford was a fugitive, that he knew Ms.

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Goff stole the firearms, and that he knowingly possessed the Glock and had

access to the .357 during the drive west. E.g., id. at 172-73, 183, 185-86, 189,

192-93.

An uncharged act is admissible as res gestae—intrinsic evidence not

subject to Federal Rule of Evidence 404(b)—if “it was inextricably intertwined

with the charged crime such that a witness’s testimony would have been

confusing and incomplete without mention of the prior act.” United States v.

Johnson, 42 F.3d 1312, 1316 (10th Cir. 1994) (alteration, citation, and internal

quotation marks); see also United States v. Parker, 553 F.3d 1309, 1314 (10th Cir.

2009). “Evidence of other crimes should not be suppressed when those facts

come in as res gestae—as part and parcel of the proof of the offense charged in

the indictment.” United States v. Kimball, 73 F.3d 269, 272 (10th Cir. 1995)

(alterations and internal quotation marks omitted).

Mr. Ford argues that the res gestae doctrine does not apply because the

government could have conveyed the operative facts without referring to the

Kansas escape. Aplt. Br. at 46-47. According to Mr. Ford, his offer to stipulate

that he was a convicted felon obviated any need to introduce evidence of the

escape. Id.; 1 R. 33. But the offered stipulation covered only one element of one

of the three charged crimes, being a felon in possession of firearms and

ammunition. The government still had to prove Mr. Ford’s knowledge that the

firearms were stolen, his possession of the firearms, and his status as a fugitive.

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At the very least, the government needed evidence of the escape to show that Mr.

Ford was a fugitive. Further, Ms. Goff was the best witness against Mr. Ford.

She offered the memory and detail of an eyewitness and partner in crime. Her

testimony about the planning of the escape was necessary to show how Mr. Ford

knew the firearms were stolen.

The Kansas escape could not be separated from the charged crimes. Mr.

Ford’s flight began with the escape, which explained his need for weapons and

the circumstances of his arrest just two and a half days later. In short, the

evidence of the Kansas escape is undoubtedly res gestae—intrinsic evidence

inextricably connected to the charged crimes.

Despite its relevance, res gestae evidence is nonetheless subject to Rule

403’s balancing test: it “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403. Mr. Ford

argues that “no probative facts . . . require an exploration of the inflammatory

telling of a prison escape.” Aplt. Br. at 48. As discussed above, the

circumstances of the prison escape were highly relevant to the elements of the

charged crimes. Mr. Ford has not shown how the evidence of his Kansas escape

presented any danger of unfair prejudice, which “makes a conviction more likely

because it provokes an emotional response in the jury or otherwise tends to affect

adversely the jury’s attitude toward the defendant wholly apart from its judgment

as to his guilt or innocense [sic] of the crime charged.” United States v. Tan, 254

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F.3d 1204, 1211-12 (10th Cir. 2001) (citation and internal quotation marks

omitted). Any prejudice suffered on account of the escape evidence is not unfair.

Again, the evidence of the escape was necessary to show that Mr. Ford was a

fugitive, an element of a charged crime. 1 Any additional color of the escape was

closely related to Mr. Ford’s guilt. The district court did not abuse its discretion

in finding that the probative value was not substantially outweighed by the danger

of unfair prejudice.

II. Sentencing Enhancement

Mr. Ford argues that the district court erred in applying a sentencing

enhancement for assaulting a law enforcement officer under U.S.S.G. §

3A1.2(c)(1). Aplt. Br. at 41-46. We review the district court’s interpretation of

the Guidelines de novo and any factual findings for clear error, “giving due

deference to the district court’s application of the guidelines to the facts.” United

States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006) (citations and internal

quotation marks omitted).

The six-level offense enhancement under § 3A1.2(c)(1) applies if, “in a

manner creating a substantial risk of serious bodily injury, the defendant . . .

knowing or having reasonable cause to believe that a person was a law

1
Although the district court hypothesized that it would still admit the
evidence even if Mr. Ford were to stipulate that he was a fugitive, that the
firearms were stolen, and that he knew they were stolen, we do not assess
hypothetical rulings, despite Mr. Ford’s wishes. See Aplt. Br. at 47-48.

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enforcement officer, assaulted such officer during the course of the offense or

immediate flight therefrom.” U.S.S.G. § 3A1.2(c)(1) (2008). The district court

found that Mr. Ford’s firing the Glock near the police officers at the Grants

apartment complex qualified him for the enhancement:

[T]he evidence in this case supports all the necessary requirements
for operation of this provision, regardless of whether Defendant Ford
fired his weapon directly at the Grants police officer or fired at close
range to create a diversion, because either way it constitutes an act
which is intended to, and reasonably does, cause the victim to fear
immediate bodily harm.

3 R. 290-91.

Mr. Ford challenges the enhancement on two grounds: (1) the court could

not find that Mr. Ford created “a substantial risk of serious bodily injury” without

any evidence that he fired in the officers’ direction; and (2) the officers’ fear of

immediate bodily harm was irrelevant. Mr. Ford does not contest that he knew

that the uniformed police officers were, in fact, police officers.

First, the district court had enough evidence to find that firing a gun 100

feet from officers in the middle of the night creates a substantial risk of serious

bodily injury. Mr. Ford is correct that no evidence at trial demonstrated the

direction of the gunshots. Nonetheless, he fired four rounds in close proximity to

the police officers. In the context of a manhunt for Mr. Ford and his refusal to

surrender, the district court could reasonably infer that Mr. Ford shot at the

officers in order to escape. At least four circuits have found that a defendant

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reaching for a gun during a police encounter creates a substantial risk of serious

bodily harm. See United States v. Hill, 583 F.3d 1075, 1080 (8th Cir. 2009);

United States v. Robinson, 537 F.3d 798, 802 (7th Cir. 2008); United States v.

Lee, 199 F.3d 16, 20 (1st Cir. 1999); United States v. Bowie, 198 F.3d 905 (D.C.

Cir. 1998). Admittedly, Mr. Ford was farther away from the officers than the

defendants in those cases. But Mr. Ford’s behavior was at least as risky as those

defendants’ because he actually discharged his weapon. Regardless of the

direction of Mr. Ford’s gunshots, their proximity to the police officers during a

nighttime chase created a substantial risk of serious bodily injury.

Second, the officers’ fear of immediate bodily harm relates to the assault

element of the enhancement, not the substantial risk of serious bodily injury.

“The guideline doesn’t define assault, and exact requirements for assault vary

from jurisdiction to jurisdiction.” Robinson, 537 F.3d at 802. Nonetheless, Mr.

Ford’s conduct qualifies under even “the most demanding standard” of assault:

conduct which places another in reasonable apprehension of receiving a battery

with intent to “‘cause apprehension’ or actual ‘bodily harm.’” Robinson, 537

F.3d at 802-03 (quoting 2 Wayne R. LaFave, Substantive Criminal Law § 16.3(b)

(2d ed. 2003)). The evidence easily supports the district court’s finding that the

gunshots placed the officers in reasonable apprehension of being shot. And the

court could reasonably infer that Mr. Ford intended to cause apprehension or

actual harm: Mr. Ford’s own appellate brief characterizes the gunshots as a

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“diversionary act.” Aplt. Br. at 42. A gunshot gives away the shooter’s position,

so it is a diversion only if it causes the officers to duck for cover. If the gunshots

were diversionary, they were intended to cause apprehension. Whether

diversionary or intended to harm the officers, the gunshots constituted an assault

under any definition known to American law.

The district court did not err in finding that Mr. Ford’s actions constituted

an assault and created a substantial risk of serious bodily injury.

III. Armed Career Criminal Act

Last, Mr. Ford challenges the district court’s finding that one of his prior

convictions qualifies as a predicate violent felony under the ACCA: his 1997

Kansas conviction for criminal discharge of a firearm at an occupied dwelling or

occupied vehicle, Kan. Stat. Ann. § 21-4219(b) (repealed and recodified 2010).

Mr. Ford does not dispute that two other prior convictions qualify as violent

felonies. We review de novo whether prior convictions qualify as violent

felonies. United States v. Scoville, 561 F.3d 1174, 1176 (10th Cir. 2009).

The ACCA mandates a minimum sentence of fifteen years’ imprisonment

for a person convicted of being a felon in possession of a firearm, and who has

three prior convictions for violent felonies, serious drug offenses, or a

combination of both. 18 U.S.C. § 924(e)(1). Under the ACCA, a “violent felony”

is

any crime punishable by imprisonment for a term exceeding one year

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 . . . that (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 . . . .

Id. § 924(e)(2)(B). To determine whether a prior conviction qualifies as a violent

felony, the Supreme Court has mandated a “categorical approach.” “Under this

approach, we look only to the fact of conviction and the statutory definition of the

prior offense, and do not generally consider the particular facts disclosed by the

record of conviction.” James v. United States, 550 U.S. 192, 202 (2007)

(citations and internal quotations omitted). “‘That is, we consider whether the

elements of the offense are of the type that would justify its inclusion’ within the

ACCA, ‘without inquiring into the specific conduct of this particular offender.’”

United States v. West, 550 F.3d 952, 957 (10th Cir. 2008) (quoting James, 550

U.S. at 202).

In some cases, where the statute of conviction “proscribes conduct broader

than that which would satisfy the ACCA’s definition of a violent felony,” a

“modified categorical approach” is appropriate. West, 550 F.3d at 957-58. Under

the modified categorical approach, “a federal court may then also look at the

charging documents and documents of conviction to determine whether the

defendant in a particular case was convicted of an offense that falls within the

ACCA.” Id. In the case of a guilty plea, the court may also examine “the terms

of a plea agreement or transcript of colloquy between judge and defendant in

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which the factual basis for the plea was confirmed by the defendant.” Shepard v.

United States, 544 U.S. 13, 26 (2005).

Mr. Ford argues that the district court improperly inquired into the

particular conduct of his 1997 conviction to determine the statute of conviction,

in violation of the categorical approach, and that the conviction does not qualify

as a violent felony. Although Mr. Ford now claims “there is no contention that

the statute of conviction is ambiguous,” Aplt. Br. at 31, he argued otherwise

before the district court. In his sentencing memorandum, he found the state court

record of his guilty plea “ambiguous” because it described his crime as

aggravated assault but cited Kan. Stat. Ann. § 21-4219. 1 R. 101-02. Indeed, the

state court journal entry listed the crime as “Aggravated Assault, K.S.A. 21-4219,

(severity Level 7, Person Felony).” Id. at 108. In light of Mr. Ford’s ambiguity

argument and because § 21-4219 seems to encompass conduct that might not

qualify as a violent felony, the modified categorical approach was appropriate.

Therefore, to resolve any ambiguity, the district court examined the charging

documents and plea colloquy, as the modified categorical approach allows.

Despite the stray labeling of the crime as aggravated assault, the charging

documents and plea colloquy demonstrate that Mr. Ford was convicted of criminal

discharge of a firearm at an occupied building or vehicle. The criminal complaint

and the plea colloquy both described the crime as “Criminal Discharge of a

Firearm at an Occupied Vehicle (Severity Level 7, Person Felony).” Id. at 116,

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161. In the plea colloquy, Mr. Ford confirmed the factual basis for the plea: “he

fired two shots towards a vehicle” that was occupied. Id. at 161-62. In

consulting these documents and using Mr. Ford’s confirmation of the factual basis

for his guilty plea, the district court followed the modified categorical approach

as Shepard prescribes. Furthermore, all the available state court documents

describe the crime as “severity level 7, person felony.” Id. at 108, 116, 161. The

only crime under § 21-4219 matching that description is criminal discharge of a

firearm at an occupied building or vehicle.

With the precise statute of conviction in hand, we can now examine

whether a Kansas conviction for criminal discharge of a firearm at an occupied

building or vehicle is a violent felony. First, the crime is not among those

enumerated in clause (ii) of the ACCA’s violent felony definition: burglary,

arson, extortion, or a crime involving the use of explosives. 18 U.S.C. §

924(e)(2)(B). Therefore, to qualify as a violent felony, it must fall under either

clause (i), having “as an element the use, attempted use, or threatened use of

physical force against the person of another,” or clause (ii)’s residual clause,

which includes crimes “otherwise involv[ing] conduct that presents a serious

potential risk of physical injury to another.” Id. The district court found that the

crime qualifies as a violent felony under the residual clause. 3 R. 290.

The government argues that the crime qualifies as a violent felony under

either clause, as it did before the district court. Aplee. Br. at 17, 24-27; 1 R. 125-

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26. The crime does not qualify under clause (i), because it lacks “as an element

the use, attempted use, or threatened use of physical force against the person of

another.” 18 U.S.C. § 924(e)(2)(B)(i). Criminal discharge of a firearm at an

occupied building or occupied vehicle “is the malicious, intentional and

unauthorized discharge of a firearm at a dwelling, building, structure, motor

vehicle, aircraft, watercraft, train, locomotive, railroad car, caboose, rail-mounted

work equipment or rolling stock or other means of conveyance of persons or

property in which there is a human being.” Kan. Stat. Ann. § 21-4219(b). We

have recognized that the Texas crime of knowingly discharging a firearm at or in

the direction of a person is a violent felony under clause (i). United States v.

Hernandez, 568 F.3d 827, 829-30 (10th Cir. 2009). Compared to the Texas crime

in Hernandez, the requisite person in the Kansas crime of criminal discharge is

one step removed. See Tex. Penal Code Ann. § 22.05(b)(1). The Kansas statute

requires force against a building or vehicle, but not against the person inside, as

clause (i) requires. The Fifth Circuit has distinguished between convictions for

discharging a firearm at or in the direction of a person and convictions for

discharging a firearm at or in the direction of an occupied building or vehicle.

See United States v. Hernandez-Rodriguez, 467 F.3d 492, 495 (5th Cir. 2006);

United States v. Alfaro, 408 F.3d 204, 208-09 (5th Cir. 2005) (Virginia crime of

discharging a firearm within or at an occupied building in manner endangering the

life of another person did not qualify under clause (i) because the required force

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was not against the person of another). Because the Kansas statute does not

require the use of force, threatened use of force, or attempted use of force against

the person of another, it does not qualify as a violent felony under clause (i).

The government makes a more compelling case that the crime qualifies

under the residual clause. 2 On its face, the residual clause includes crimes

“otherwise involv[ing] conduct that presents a serious potential risk of physical

injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court has

clarified that the clause encompasses only “crimes that are roughly similar, in

kind as well as in degree of risk posed” to the crimes enumerated in the preceding

clause: burglary, arson, extortion, and crimes involving the use of explosives.

Begay v. United States, 553 U.S. 137, 143 (2008); see also United States v.

Williams, 559 F.3d 1143, 1147 (10th Cir. 2009). A crime is similar in kind to the

enumerated crimes if it “involve[s] purposeful, violent, and aggressive conduct.”

Begay, 553 U.S. at 144-45 (internal quotation marks omitted); see also West, 550

F.3d at 965-68.

First, criminal discharge of a firearm at an occupied building or vehicle is

at least as risky as burglary or arson. As the government argues, “Burglary is

dangerous because of the possibility that someone will be present when the crime

2
Although Mr. Ford’s reply brief offers a host of new arguments that the
Kansas crime does not qualify as a violent felony under the residual clause, we
decline to consider arguments not raised in his opening brief. Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).

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is committed,” leading to a confrontation. Aplee. Br. at 29 (citing James, 550

U.S. at 203). Unlike burglary, criminal discharge requires a person’s presence in

the targeted building or vehicle. The person’s presence increases the likelihood

of at least a confrontation, if not a gunshot wound. The crime’s risks are also

similar to the risks attendant to arson. Arson directly damages a building, but

indirectly endangers any person who might be inside. See Model Penal Code §

220.1(1), (4) (arson entails “start[ing] a fire or caus[ing] an explosion with the

purpose of . . . destroying a building or occupied structure of another,” though a

structure is considered occupied “whether or not a person is actually present”).

But see 3 LaFave, Substantive Criminal Law § 21.3(c) (“Today, most states

provide more generally that ‘buildings’ or ‘structures’ or both are the subject

matter of the crime of arson.”). Again, the Kansas criminal discharge statute

requires a person’s presence, creating a greater risk than arson, which does not

require a person’s presence. The Kansas crime of criminal discharge proscribes

conduct roughly similar in the degree of risk posed as two enumerated crimes.

The crime is also similar in kind to the enumerated crimes because it

involves purposeful, violent, and aggressive conduct. First, the statute requires

intentional conduct, which satisfies Begay’s requirement that the crime be

purposeful. West, 550 F.3d at 970 (“Begay equates purposeful with deliberate or

intentional.” (citing Begay, 553 U.S. at 144-45)). Second, maliciously

discharging a firearm at an occupied structure is violent and aggressive.

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Undoubtedly, maliciously and intentionally shooting a building or car with people

inside is “characterized [] by physical force, especially by . . . unjust or improper

force,” and therefore violent. Black’s Law Dictionary 1570 (6th ed. 1990). It is

unclear whether “aggressive” means anything different than “violent.” United

States v. Zuniga, 553 F.3d 1330, 1335 (10th Cir. 2009) (“We consider it unlikely

that any conduct properly characterized as ‘violent’ could not also be

characterized as ‘aggressive.’”); see also David C. Holman, Violent Crimes and

Known Associates: The Residual Clause of the Armed Career Criminal Act, 43

Conn. L. Rev. (forthcoming 2010) (manuscript at 19-20,

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1556463). Nonetheless, the

Kansas criminal discharge statute proscribes conduct which fulfills an

approximate definition of “aggressive”: “offensive and forceful and characterized

by initiating hostilities or attacks.” West, 550 F.3d at 969 (citations and internal

quotation marks omitted). Because the Kansas crime of criminal discharge of a

firearm at an occupied building or vehicle involves purposeful, violent, and

aggressive conduct, and is at least as risky as two enumerated crimes, the crime

qualifies as a violent felony under the ACCA’s residual clause.

AFFIRMED.

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