United States v. Fell

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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