FILED
United States Court of Appeals
Tenth Circuit
December 18, 2007
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 06-1438
NATHANIEL J. FELL, also known as
Romeo,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 05-CR-158-EWN)
Stephen M. Wheeler, Wheeler Law Offices, P.C., Evergreen, Colorado, for
Appellant.
James C. Murphy, Assistant United States Attorney (Troy A. Eid, United States
Attorney, with him on the briefs), Denver, Colorado, for Appellee.
Before TACHA, Chief Judge, BRISCOE, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
I. Introduction
Defendant-Appellant, Nathaniel J. Fell, entered a guilty plea to a charge of
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). A
Presentence Investigation Report (“PSR”) recommended that Fell be sentenced as
an armed career criminal. See 18 U.S.C. § 924(e). Fell objected to the
recommendation, arguing his prior Colorado state conviction for conspiracy to
commit second degree burglary is not a violent felony conviction under 18 U.S.C.
§ 924(e)(2)(B). The district court concluded the Colorado conviction qualifies as
a violent felony and sentenced Fell to the statutorily mandated fifteen-year term
of imprisonment. Fell appeals his sentence. Applying the framework recently
articulated by the Supreme Court in James v. United States, 127 S. Ct. 1586
(2007), and exercising jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291, we reverse and remand for resentencing.
II. Background
The facts underlying Fell’s crime of conviction are not disputed. Fell was
charged in a superseding indictment with two counts of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 924(e). Pursuant to the terms
of a written plea agreement, Fell pleaded guilty to one of the counts and the
Government dismissed the second count. The plea agreement also recited the
parties’ recognition of Fell’s three prior Colorado convictions: a 1994 conviction
for menacing, a 1995 conviction for conspiracy to commit second degree
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burglary, and a 1997 conviction for attempted escape. Both the Government and
Fell expressed the view that Fell’s 1995 conspiracy conviction did not constitute a
violent felony for purposes of the application of the armed career criminal
sentencing provisions set out in 18 U.S.C. § 924(e). They acknowledged,
however, their position was not binding on the district court.
At the change of plea hearing, the district court specifically advised Fell
there was a possibility he could be sentenced as an armed career criminal to a
minimum of fifteen years’ imprisonment. Fell acknowledged he understood and
thereafter entered a guilty plea. The district court accepted Fell’s plea and
ordered a PSR prepared. Contrary to the position of the parties, the PSR
recommended that all of Fell’s prior Colorado convictions, including his 1995
conviction for conspiracy to commit second degree burglary, be designated
violent felonies and that Fell be sentenced pursuant to 18 U.S.C. § 924(e) as an
armed career criminal. Fell filed a written objection to the PSR’s treatment of his
conspiracy conviction and renewed his objections orally at the sentencing hearing.
Relying on this court’s opinion in United States v. Brown, 200 F.3d 700 (10th Cir.
1999), the district court determined the Colorado conspiracy conviction was a
violent felony within the meaning of 18 U.S.C. § 924(e)(2)(B) and sentenced Fell
to fifteen years’ imprisonment, the statutory minimum. 1 18 U.S.C. § 924(e)(1).
1
Fell did not challenge the characterization of his menacing conviction or
his attempted escape conviction as violent felonies.
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III. Discussion
Because Fell was convicted of violating 18 U.S.C. § 922(g), the Armed
Career Criminal Act (“ACCA”) mandates that he be sentenced to a fifteen-year
minimum term of imprisonment if he has three prior violent felony convictions.
18 U.S.C. § 924(e)(1). Fell does not dispute that he has been previously
convicted of two violent felonies. The only appellate issue he raises is whether
his 1995 Colorado conviction for conspiracy to commit second degree burglary
qualifies as a violent felony for purposes of the minimum mandatory sentencing
provisions of the ACCA. We review this legal question de novo. United States v.
Begay, 470 F.3d 964, 967 (10th Cir. 2006).
The ACCA defines a violent felony as,
any crime punishable by imprisonment for a term exceeding one
year, or any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be punishable by
imprisonment for such term if committed by an adult, 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 . . . .
18 U.S.C. § 924(e)(2)(B). To qualify as a violent felony, Fell’s Colorado
conspiracy conviction must either (1) fit under § 924(e)(2)(B)(i) because it “has
as an element the use, attempted use, or threatened use of physical force against”
another individual; (2) be one of the four offenses specifically enumerated in
§ 924(e)(2)(B)(ii); or (3) fall within the residual clause of § 924(e)(2)(B)(ii)
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because it involves conduct that “presents a serious potential risk of physical
injury to another.”
Section 18-2-201 of the Colorado Revised Statutes states:
A person commits conspiracy to commit a crime if, with the intent to
promote or facilitate its commission, he agrees with another person
or persons that they, or one or more of them, will engage in conduct
which constitutes a crime or an attempt to commit a crime, or he
agrees to aid the other person or persons in the planning or
commission of a crime or of an attempt to commit such crime.
The Colorado Supreme Court has clarified that conspiracy is a specific intent
crime and a conspirator must have, inter alia, the specific intent to commit the
crime which is the object of the conspiracy. Watkins v. People, 655 P.2d 834,
838 (Colo. 1982). In Fell’s case, that crime was second degree burglary which, at
the time of his conviction, was defined by Colorado law as “knowingly break[ing]
an entrance into, or enter[ing], or remain[ing] unlawfully in a building or
occupied structure with intent to commit therein a crime against another person or
property.” Colo. Rev. Stat. § 18-4-203(1). Because Colorado law does not
require proof of the use, attempted use, or threatened use of physical force to
sustain a conviction for conspiracy to commit second degree burglary, Fell’s prior
conviction does not qualify as a violent felony pursuant to § 924(e)(2)(B)(i).
Neither does it qualify under the first clause of § 924(e)(2)(B)(ii), since it does
not involve the use of explosives and it is not burglary, arson, or extortion. Cf.
United States v. Strahl, 958 F.2d 980, 986 (10th Cir. 1992) (“We cannot conclude
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that Congress intended implicitly to include attempted burglary as a violent
offense when it specified burglary as a violent felony under § 924(e)(2)(B)(ii).”).
Consequently, Fell’s conspiracy conviction can qualify as a violent felony, if at
all, only pursuant to the residual clause of § 924(e)(2)(B)(ii).
This court has previously addressed whether inchoate crimes qualify as
violent felonies under the residual clause of the ACCA. In United States v.
Strahl, the appellant challenged the district court’s use of a Utah attempted
burglary conviction to sentence him pursuant to the ACCA. 958 F.2d at 982-83.
The Utah burglary statute criminalized entering or unlawfully remaining in a
building with the intent to commit a felony, theft, or assault. Id. at 985; see also
Utah Code Ann. § 76-6-202(1). The Utah attempt statute required, inter alia, that
a defendant “‘engage[] in conduct constituting a substantial step toward
commission of the offense.’” Strahl, 958 F.2d at 985 (quoting Utah Code Ann.
§ 76-4-101(1) (2003)). This court rejected the Government’s argument that
attempted burglary is ineluctably a violent felony because burglary is one of the
crimes specifically enumerated in 18 U.S.C. § 924(e)(2)(B)(ii). Id. at 986. After
examining the legislative history of the ACCA, we concluded the express
inclusion of the completed crime of burglary in the statute was not also an
implicit inclusion of attempted burglary. Id. Consequently, we next analyzed
whether an attempted burglary conviction under Utah law was a violent felony
under the residual clause of § 924(e)(2)(B)(ii). We noted that Utah’s attempt
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statute permitted convictions based on preparatory conduct which, in appellant’s
case, could have included “making a duplicate key, ‘casing’ the targeted building,
obtaining floor plans of a structure, or possessing burglary tools.” Id.
Concluding such conduct does “not necessarily present circumstances which
create the high risk of violent confrontation inherent in a completed burglary,” we
held the Utah attempted burglary conviction was not a violent felony under the
ACCA because Utah law criminalized conduct that is “well outside § 924(e)’s
target of ‘violent’ felonies.” Id.
Less than a year later, we applied the reasoning in Strahl to reverse a
sentence imposed pursuant to the ACCA on a defendant who had previously been
convicted of attempted burglary under Oklahoma law. United States v.
Permenter, 969 F.2d 911, 915 (10th Cir. 1992). The Oklahoma attempt statute
provided that “any act” directed toward the commission of the substantive crime
could support an attempt conviction. Id. at 913. We concluded the statute, like
the Utah statute at issue in Strahl, was overly inclusive and did not necessarily
criminalize only conduct presenting a serious potential risk of physical injury to
others. Id. Thus, the Oklahoma conviction did not qualify as a violent felony.
We next considered an appeal from a defendant sentenced under the ACCA
because of a prior New Mexico conviction for conspiracy to commit armed
robbery. United States v. King, 979 F.2d 801, 801 (10th Cir. 1992). Consistent
with our decisions in Strahl and Permenter, we began our analysis by looking to
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the language of the state statute pursuant to which the defendant had been
previously convicted. Id. at 804 (“We believe these prior Tenth Circuit cases and
the approach they articulate require us to look only to the elements of the
conspiracy crime under New Mexico law.”). Under New Mexico law, the crime
of conspiracy is complete when the co-conspirators agree to commit a felony and
intend to commit the felony; there is no requirement that they take any overt step
in furtherance of the substantive offense. Id. at 802 (citing State v. Gilbert, 644
P.2d 1066, 1070 (N.M. 1982)) (“It is the agreement constituting the conspiracy
which the statute punishes.”). Because New Mexico criminal conspiracies
involve only agreements to undertake felonious acts, we held they do not
necessarily present a serious potential risk of physical injury to others and, thus,
are not violent felonies under the ACCA. Id. at 804.
Our decision in King was distinguished several years later in United States
v. Brown, 200 F.3d 700, 706 (10th Cir. 1999). Brown involved a determination of
whether a federal conviction for conspiracy to commit carjacking is a crime of
violence triggering the application of an enhanced penalty under 18 U.S.C.
§ 924(c)(1)(A). The term “crime of violence” is defined by 18 U.S.C. § 924(c)(3)
as a felony “that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of committing
the offense.” After first concluding the substantive crime of carjacking “is
always a crime of violence,” we then rejected the defendant’s argument that King
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prohibited consideration of the elements of the substantive offense when
evaluating whether conspiracy to commit the substantive offense is a crime of
violence. Brown, 200 F.3d at 706. Instead, we noted that, unlike the New
Mexico conspiracy statute at issue in King, an overt act in furtherance of the
conspiracy is an element of the federal crime of conspiracy. Id. Because the New
Mexico statute at issue in King did not require an overt act, in that case we looked
only to the elements of the conspiracy charge. We reasoned that the overt act
requirement of the federal conspiracy statute, in contrast, “plainly invites
consideration of the underlying substantive offense . . . because the overt act must
be evaluated with reference to the object of the conspiracy.” Id. Concluding “an
agreement to accomplish the statutory elements of carjacking necessarily involves
a substantial risk of physical force against the person or property of another,” we
held conspiracy to commit carjacking is a crime of violence. Id. Although Brown
characterized “the definition of violent felony under § 924(e) and a crime of
violence under § 924(c)” as “essentially identical,” it did not reference, discuss,
or distinguish either Strahl or Permenter. Id.
The district court relied on our analysis of § 924(c) in Brown to support its
conclusion that Fell’s Colorado conspiracy conviction is a violent felony under
§ 924(e)(2)(B)(ii). The court read Brown to stand for the proposition that
conspiracy to commit any substantive offense that is a violent felony under
§ 924(e)(1) is itself a violent felony if an overt act in furtherance of the
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substantive crime is an element of the applicable conspiracy statute. Consistent
with this interpretation, the district court concluded Fell’s conviction for
conspiracy to commit second degree burglary is a violent felony because it
categorically presents the same potential risk of physical injury to others as
burglary, an enumerated violent felony and the substantive crime toward which
the overt act was directed. It is unnecessary to resolve the question of whether
the district court properly relied on Brown because the Supreme Court has
recently provided the federal courts with a new framework applicable to the
question of whether a prior conviction for an inchoate crime qualifies as a violent
felony under the ACCA.
In James v. United States, the Supreme Court applied a categorical
approach to the question of whether a Florida conviction for attempted burglary
was a violent felony under the residual clause of the ACCA. 127 S. Ct. at
1593-94. Rejecting the method advocated by the defendant and the one this court
adopted in Strahl and Permenter, the Court held the categorical approach does not
“require[] that every conceivable factual offense covered by a statute must
necessarily present a serious potential risk of injury before the offense can be
deemed a violent felony.” Id. at 1597 (emphasis added). Further, although the
Florida crime had an overt act element, the Court did not look only to the
elements of the underlying substantive crime as we arguably did in Brown.
Instead, it focused its analysis on “whether the conduct encompassed by the
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elements of the offense, in the ordinary case, presents a serious potential risk of
injury to another.” Id. (emphasis added).
The Court first examined the elements of the offense at issue in
James—attempted burglary under Florida law. Id. at 1594. Pursuant to Florida
statute, the crime of attempted burglary is complete when the defendant performs
“any act toward the commission” of the offense of burglary. Fla. Stat.
§ 777.04(1). The Florida courts, however, have interpreted the statute more
narrowly to require an “overt act directed toward entering or remaining in a
structure or conveyance.” James, 127 S. Ct. at 1594 (quotation omitted). The
Court then compared the “risk posed by attempted burglary” to the risk “posed by
its closest analog among the enumerated offenses” which the James majority
determined was completed burglary. Id. It concluded the potential risk of
physical injury posed by attempted burglary under Florida law was comparable to
the potential risk inherent in a completed burglary. Id. at 1594-96. According to
the Court, that risk “arises not from the simple physical act of wrongfully
entering onto another’s property, but rather from the possibility of a face-to-face
confrontation between the burglar and a third party . . . who comes to
investigate.” Id. at 1594. Because Florida law does not criminalize an overt act
unless it is directed toward the entering of a building or structure, attempted
burglary carries at least the same risk of such face-to-face confrontation and, thus,
the ordinary Florida case of attempted burglary presents a serious potential risk of
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physical injury to others. Id. at 1597-98. The Court rejected James’ argument
that Florida law criminalizes preparatory conduct involving no risk of a violent
confrontation. The Court specifically distinguished Strahl and Permenter, noting
that unlike the Florida statute both Utah and Oklahoma law criminalized mere
preparatory conduct. Id. at 1595-96, 1596 n.4.
Our analysis of whether Fell’s Colorado conviction qualifies as a violent
felony under the ACCA is conducted in conformity with James and the “formal
categorical approach” set out by the Supreme Court in Taylor v. United States.
495 U.S. 575, 600 (1990). Although the factual circumstances surrounding Fell’s
conviction are included in the appellate record, in compliance with Taylor we
may look “only to the statutory definitions of the prior offenses, and not to the
particular facts underlying those convictions.” Id. As directed by James, we
begin with an examination of the elements of the conviction used to support the
application of the ACCA.
Fell was convicted of conspiracy to commit second degree burglary. Under
Colorado law, a conspiracy conviction can be sustained with proof of “(1) a real
agreement, combination or confederation with a common design; (2) between two
or more persons; (3) to accomplish an unlawful purpose which amounts to a
crime.” People v. Albers, 582 P.2d 667, 667 (Colo. 1978). The conspiracy
statute also specifically provides that “[n]o person may be convicted of
conspiracy to commit a crime, unless an overt act in pursuance of that conspiracy
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is proved to have been done by him or by a person with whom he conspired.”
Colo. Rev. Stat. § 18-2-201(2); see also People v. Schruder, 735 P.2d 905, 907
(Colo. App. 1986) (“An overt act in furtherance of a conspiracy is required for
conviction of conspiracy.”). The term “overt act” is not defined in the Colorado
Criminal Code but the Colorado Court of Appeals has explained that the plain
meaning of the term is not “abstruse.” Schruder, 735 P.2d at 907. The Colorado
Supreme Court Committee on Criminal Jury Instructions recommends the use of
the following definition of overt act:
“Overt act” means any act knowingly committed by one of the
conspirators, in an effort or effect to accomplish some object or
purpose of the conspiracy. The overt act need not be criminal in
nature, if conspired separately and apart from the conspiracy. It
must, however, be an act which follows and tends toward
accomplishment of a plan or scheme, and must be knowingly done in
furtherance of some object or purpose of the conspiracy charged in
the information.
Colo. Jury Instr., Criminal 8(1) Definitions (1993).
The object of the conspiracy for which Fell was convicted was the
commission of second degree burglary. In Colorado,
[a] person commits second degree burglary, if the person knowingly
breaks an entrance into, enters unlawfully in, or remains unlawfully
after a lawful or unlawful entry in a building or occupied structure
with intent to commit therein a crime against another person or
property.
Colo. Stat. Ann. § 18-4-203. The parties have not argued that Colorado
convictions for conspiracy to commit second degree burglary require proof the
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overt act was directed toward the actual entry into a building or structure and we
could find no support for such a position. The language of the Colorado
conspiracy statute only states that the act must be committed in furtherance of the
ultimate objective of the conspiracy. The recommended definition of the term
“overt act” clarifies it is not invariably an illegal act; it can be wholly lawful if
committed apart from the conspiracy. Thus, there is no basis upon which this
court can conclude the overt act requirement necessary to sustain a Colorado
conspiracy conviction is analogous to the Florida overt act requirement analyzed
in James. Under Colorado law, a jury can convict a defendant of conspiracy to
commit second degree burglary without proof that a conspirator committed an act
directed toward the entry of the building or structure. Accordingly, the Colorado
conspiracy statute is analogous to the Utah and Oklahoma attempt statutes we
analyzed in Strahl and Permenter, where we concluded the statutes permitted
criminal convictions if a jury finds a defendant engaged in mere preparatory
conduct “‘with the kind of culpability otherwise required’ for the commission of a
burglary.” Strahl, 958 F.2d at 986 (“[A]n attempted burglary conviction may be
based upon conduct such as making a duplicate key, ‘casing’ the targeted
building, obtaining floor plans of a structure, or possessing burglary tools.”).
This appeal, therefore, presents the very question the Supreme Court deemed
unnecessary to resolve in James, i.e., whether a conviction for an inchoate crime
encompassing preparatory conduct is a violent felony. James, 127 S. Ct. at 1596
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(“Given that Florida law, as interpreted by that State’s highest court, requires an
overt act directed toward the entry of a structure, we need not consider whether
the more attenuated conduct encompassed by such laws presents a potential risk
of serious injury under ACCA.”).
To obtain a conspiracy conviction, the state of Colorado must prove the
defendant had both the specific intent to agree or conspire to commit a particular
criminal offense and the specific intent to commit or attempt to commit that
criminal offense. Palmer v. People, 964 P.2d 524, 527 (Colo. 1998). Thus, in
addition to the overt act element, conspiracy to commit second degree burglary
also has the element of an agreement between two or more persons to commit an
unlawful act. In this way, Fell’s conviction differs from the attempted burglary
convictions we analyzed in Strahl and Permenter, both of which required overt
acts but not felonious agreements.
Chiefly because of the agreement element, the Supreme Court has
characterized the crime of conspiracy as posing “a threat to the public over and
above the threat of the commission of the relevant substantive crime–both
because the combination in crime makes more likely the commission of other
crimes and because it decreases the probability that the individuals involved will
depart from their path of criminality.” United States v. Jimenez Recio, 537 U.S.
270, 275 (2003) (quotations and alterations omitted). James instructs us to
measure the risk of physical injury posed by conspiracy to commit second degree
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burglary against the risk posed by the completed crime of burglary. 127 S. Ct. at
1594. If the risk is comparable, Fell’s conspiracy conviction is properly
characterized as a violent felony. See id. (analyzing “whether the risk posed by
attempted burglary is comparable to that posed by its closest analog among the
enumerated offenses”). The Court’s characterization of conspiracies as
presenting a greater threat to the public than the threat from the commission of
substantive offenses might, at first blush, appear to definitively support the
conclusion that conspiracy to commit second degree burglary presents a risk of
physical harm to others comparable to completed burglary. Upon closer
examination, however, the Court’s statement in Jimenez Recio cannot be read so
broadly.
In Jimenez Recio, police thwarted a drug conspiracy by seizing the drugs
intended for distribution. 537 U.S. at 272. They then set up a sting operation
which resulted in the arrest of defendants, Jimenez Recio and Lopez-Meza. Id. at
272-73. Defendants appealed their conspiracy convictions, arguing (1) the
conspiracy ended once the police seized the drugs and (2) the evidence was
insufficient to support the jury’s conclusion that they joined the conspiracy before
the seizure. Id. at 273-74. The Court ruled a conspiracy does not automatically
terminate once the objective of the criminal agreement has been rendered
impossible to achieve. Id. at 274. To support this conclusion, the Court
reiterated that the essence of a conspiracy is the agreement between the
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conspirators. Consequently, the crime of conspiracy is separate and distinct from
the substantive crime and a conspiracy conviction is not predicated on the
commission of the substantive offense. Id. Further, different societal dangers are
associated with conspiracies, including the increased likelihood the conspirators
will commit other crimes and the decreased likelihood they will abandon their
criminal endeavors. Id. at 275. “Where police have frustrated a conspiracy’s
specific objective but conspirators (unaware of that fact) have neither abandoned
the conspiracy nor withdrawn, these special conspiracy-related dangers remain.”
Id. Notably, the Court did not opine that all conspiracies pose a greater threat of
physical harm to others than the threat posed by the substantive offense. It
simply observed that individuals involved in conspiracies are more likely to
engage in additional and more complex criminal activity. Id. Although Jimenez
Recio characterizes concerted criminal activity as posing a greater overall threat
to the social order, the Court did not identify that threat as implicating a potential
risk of physical injury to others, the heart of the question before us.
Our interpretation of the Court’s statement in Jimenez Recio is confirmed
by the case from which the concept was drawn. In Callanan v. United States, the
Court held that a substantive offense and conspiracy to commit the offense are
separate and distinct crimes for which cumulative sentences may be imposed. 364
U.S. 587, 593 (1961). The Court drew support from the broad principle that a
conspiracy poses a different and greater potential threat to society because “the
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danger which a conspiracy generates is not confined to the substantive offense
which is the immediate aim of the enterprise.” Id. This principle, however, is not
equivalent to the proposition that conspiracies pose a greater, or even comparable,
potential risk of physical harm to others as compared to the underlying
substantive crime; the Court did not even address the threat of physical harm,
only the general threat to societal order.
The reference in Jimenez Recio to the decreased “probability that the
individuals involved will depart from their path of criminality” does not translate
to an increased risk the substantive crime will occur. The decreased probability
that conspirators will not terminate their criminal endeavors merely equates to a
continuation of the conspiracy, an inchoate crime, and the consequent risks to
societal order. Even if one were to hypothesize that the greater the likelihood the
conspiracy will continue, the greater the likelihood the substantive crime will
occur, this would still not inform the question before us: whether conspiracy to
commit second degree burglary in Colorado poses a risk of physical injury
comparable to that of a completed burglary. James, 127 S. Ct. at 1594 (“In this
case, we can ask whether the risk posed by attempted burglary is comparable to
that posed by its closest analog among the enumerated offenses–here, completed
burglary.”).
In the context of conspiracy to commit second degree burglary, a
“decreased likelihood” the conspirators will abandon their criminal endeavor
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constitutes nothing more than a mere increase in the theoretical probability the
substantive crime of burglary will be completed by one of the conspirators.
Jimenez Recio, 537 U.S. at 275. Even an increase in the theoretical probability
that a burglary will occur does not transform the ordinary Colorado case of
conspiracy to commit second degree burglary into an offense “that, by its nature,
presents a serious potential risk of injury to another.” James, 127 S. Ct. at 1597.
The James Court reiterated that the “main risk of burglary arises . . . not from the
completion of the burglary, but from the possibility that an innocent person might
appear while the crime is in progress.” Id. at 1594-95. Unlike the situation
presented in James, where Florida’s overt act requirement is never satisfied
unless the would-be burglar is actually present at the targeted building and
attempting to enter it, we can only speculate at the likelihood that a conspirator
involved in an ordinary Colorado case of conspiracy to commit second degree
burglary will ultimately travel to the targeted building to complete the substantive
crime of burglary. Accordingly, we cannot determine with any degree of
certainty that it is probable a conspirator will actually attempt to enter the
building. Yet, if the conspirator is not at the building or in the vicinity, the
potential risk of physical injury to others is nearly nonexistent. Thus, an increase
in the indeterminate and unquantified theoretical probability the burglary will be
committed fails to elevate the potential risk of physical harm posed by conspiracy
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to commit second degree burglary to a level comparable to the risk posed by the
commission of the enumerated crime of burglary.
Having considered the elements of conspiracy to commit second degree
burglary under Colorado law in light of the applicable law, we conclude it is not a
violent felony for purposes of the ACCA. Although there is an overt act element,
the act need not be directed toward the entry of a building or structure. Once an
agreement to burglarize a property is reached, overt acts in furtherance of the
collective objective will typically include attenuated conduct such as purchasing
tools and supplies, arranging transportation to and from the building, and
obtaining plans or maps. Usually such acts can be committed a considerable
distance from the targeted property and ordinarily without raising any suspicions
on the part of third parties. Thus, many overt acts sufficient to sustain a Colorado
conspiracy conviction create no risk of a violent confrontation between the
defendant and an individual interacting with the conspirator while the overt act is
being committed.
Although the collaborative efforts of two or more individuals to commit
second degree burglary admittedly increase the potential risk to the social order
because of the increased likelihood of additional and more complex criminal
activity, we cannot conclude this elevated risk to society is comparable to the risk
of physical harm to others inherent in the enumerated crime of burglary. The
increased criminal activity will often consist only of more elaborate and otherwise
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lawful preparatory acts, none of which place the conspirators anywhere near the
vicinity of the targeted building, or will involve tangential criminal acts that,
while unlawful, present no potential risk of physical harm to other persons. For
these reasons, we conclude the potential risk of physical harm associated with the
Colorado crime of conspiracy to commit second degree burglary is not
comparable to the risk associated with the completed crime of burglary.
IV. Conclusion
The ordinary Colorado case of conspiracy to commit second burglary does
not present a risk of violent confrontation comparable to the risk inherent in a
completed burglary. Accordingly, we conclude Fell’s Colorado conviction is not
a violent felony as that term is defined in 18 U.S.C. § 924(e)(2)(B) and it should
not have been used as a basis for the imposition of the armed career criminal
enhancement. The sentence imposed by the district court is reversed and the case
remanded for resentencing.
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