United States Court of Appeals
For the First Circuit
No. 07-1553
UNITED STATES OF AMERICA,
Appellee,
v.
JEFFREY ALLEN HERRICK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lipez and Howard, Circuit Judges,
and Besosa*, District Judge.
Susan E. Taylor, for appellant.
Margaret D. McGaughey, Assistant United States Attorney,
Appellate Chief, with whom Paula D. Silsby, United States Attorney,
was on brief for appellee.
October 17, 2008
*
Of the District of Puerto Rico, sitting by designation.
BESOSA, District Judge. On November 1, 2006, appellant
Jeffrey Allen Herrick plead guilty to a one-count information
charging him with possessing a firearm after he had already been
convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). He was sentenced on March 30, 2007. To determine
Herrick’s sentence, the district court relied on the United States
Sentencing Guidelines (“Guidelines”). On appeal, Herrick argues
that the district court incorrectly classified a prior Wisconsin
conviction for motor vehicle homicide as a crime of violence under
Guideline section 4B1.2(a). Subsequent to the briefing and oral
argument in this case, the Supreme Court decided Begay v. United
States, 553 U.S. ___, 128 S.Ct. 1581 (2008). We requested
additional briefing from the parties concerning the impact of Begay
on this case. Now, because of the lessons contained in Begay, we
vacate the sentence imposed by the district court and remand for
resentencing consistent with this opinion.
I. Facts
On November 1, 2006, Herrick plead guilty to a single offense
of being a felon in possession of a firearm in violation of Title
18 U.S.C. §§ 922(g)(1) and 924(a)(2). The plea agreement contained
a waiver of Herrick’s right to appeal his conviction or any term of
imprisonment that did not exceed the number of months provided for
total offense level 10 (regardless of the Criminal History Category
(“CHC”) determined by the court). Herrick accepted the
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government’s proffered evidence as true, including the assertion
that at one time or another he possessed three different firearms.
The prosecution’s evidence supporting conviction was based upon
admissions made by Herrick and evidence collected from his home.
Herrick was a convicted felon who had engaged in unlawful
hunting activities and had used a shotgun owned by another
individual, Kevin Farley, to shoot a bear and a “bull beef
critter.” A .22 caliber rifle and .20 gauge shotgun shells were
found at Herrick’s residence during a January 10, 2006 search.
Also found was a photograph of Herrick holding a rifle.
Herrick claimed that he bought the .22 caliber rifle, a youth
model, for his wife to use for protection when he was away from
home. He also claimed that he shot the steer only because it was
to be butchered the next day and that it needed to be bled and
gutted. Herrick also explained that the seized photograph of him
with a rifle memorialized a hunting episode with his uncle but that
he had actually hunted with a bow and arrow. The rifle, according
to Herrick, was only in the photograph because a hunting guide
suggested that it be included in the picture.
The United States Probation and Pretrial Services Pre-Sentence
Report (“PSR”) assigned Herrick a total offense level of 19 and a
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Criminal History Category (“CHC”) of V.1 The base offense level
calculation depended in part upon the PSR’s categorization of
Herrick’s 1995 Wisconsin conviction for homicide by negligent
operation of a motor vehicle as a “crime of violence” pursuant to
Guidelines section 4B1.2(a). The categorization of Herrick’s
Wisconsin conviction as a “crime of violence” increased his base
offense level under the Guidelines and it disqualified him from
utilizing the “sporting purposes” exception found at Guidelines
section 2K2.1(b)(2).
Herrick objected to the calculation of his criminal history on
two grounds: first, he argued that it was error for his Wisconsin
conviction to be categorized as a “crime of violence”; and second,
he claimed that two of his other convictions should not be
considered as separate offenses. The district judge adopted
1
The total offense level was calculated as follows:
(1) Herrick had a base offense level of twenty pursuant to
Guidelines section 2K2.1(a)(4) based on the crime to which he plead
guilty and a prior conviction for a crime of violence; (2) there
was a two level enhancement pursuant to Guidelines section
2K2.1(b)(1)(A) because the offense involved between three and six
firearms. There was a three-level reduction, however, for
acceptance of responsibility, which left Herrick at a total offense
level of nineteen.
The PSR also assigned Herrick a CHC of V based on a finding
that his prior convictions provided him with a total of twelve
criminal history points. The twelve points were produced by adding
three points for a 1995 Wisconsin conviction for homicide by
negligent operation of a vehicle, and another three points each for
three different convictions relating to burglary or theft. The
maximum statutory term for Herrick was ten years. The Guidelines
range for Herrick, at a total offense level of nineteen and a CHC
of V, was 57 to 71 months.
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Herrick’s second objection, treating two of his convictions as
related for sentencing purposes pursuant to Guidelines section
4A1.2(a), which resulted in a reduction of his Criminal History
Category from V to IV. The judge disagreed with Herrick, however,
regarding the classification of the Wisconsin conviction.
The district court analyzed the Wisconsin vehicular homicide
statute, Wis. Stat. Ann. § 940.10, and a related statute defining
“criminal negligence,” Wis. Stat. Ann. § 939.25, pursuant to the
conditional two-step approach described in United States v. Teague,
469 F.3d 205 (1st Cir. 2006) and United States v. Richards, 456
F.3d 260 (1st Cir. 2006). Pursuant to the first step of the test,
the district court found that Herrick’s Wisconsin conviction was
properly classified as a crime of violence under the Guidelines
because the Wisconsin statute required that Herrick be engaged in
conduct presenting a serious potential risk of physical injury to
another in order to be convicted. While the district judge did not
adjust Herrick’s total offense level downward based upon the
categorization of his prior Wisconsin conviction, he did grant
Herrick an additional downward departure in his CHC (from IV to
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III), finding that Herrick’s CHC overstated the likelihood that he
would re-offend.2
With a CHC of III and a total offense level of 19, the
Guidelines range for Herrick was imprisonment for 37 to 46 months.
The Assistant United States Attorney recommended that Herrick be
given the minimum Guidelines term. The district court agreed,
sentencing him to 37 months imprisonment, plus two years of
supervised release and a monetary assessment of $100.00. Fines
were waived. The district court did not enforce Herrick’s appeal
waiver because his total offense level was greater than the
threshold level of 10 established in the waiver provision in the
plea agreement.
II. Standard of Review
Questions of law involved in sentencing determinations are
afforded de novo review. United States v. Carrasco-Mateo, 389 F.3d
239, 243 (1st Cir. 2004).
2
This departure was granted pursuant to Guidelines section
4A1.3, taking into consideration that Herrick’s last conviction was
12 years old. The district court denied downward departures which
were sought by Herrick on the following three grounds: (1) that
the conduct alleged constituted aberrant behavior pursuant to
Guidelines section 5K2.2; (2) that a lengthy incarceration would
have a deleterious effect upon his family pursuant to Guidelines
section 5H1.6; and (3) that abuse Herrick suffered while
incarcerated in a Wisconsin prison constituted a mitigating
circumstance.
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III. Discussion
A. Application of the “formal categorical approach”
The sole issue on appeal is whether the district court
committed error by classifying Herrick’s 1995 Wisconsin conviction
for motor vehicle homicide (“vehicular homicide”) as a “crime of
violence” pursuant to Guidelines section 4B1.2(a). A crime of
violence, as defined in the Guidelines, “means any offense under
federal or state law, punishable by imprisonment for a term
exceeding one year, that -
1. has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
2. is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury
to another.
U.S.S.G. § 4B1.2(a) (emphasis added).
This court takes a two-step “formal categorical approach” to
the question of whether a putative predicate felony constitutes a
crime of violence under the Guidelines. See United States v.
Teague, 469 F.3d 205, 208 (1st Cir. 2006); United States v.
Richards, 456 F.3d 260, 262-63 (1st Cir. 2006); United States v.
Winn, 364 F.3d 7, 9 (1st Cir. 2004). Pursuant to the first step,
where a violation of the statute underlying the prior conviction
necessarily involves every element of a violent felony, the mere
fact of conviction establishes the putative predicate offense as a
violent felony. Richards, 456 F.3d at 263 (citing Taylor v. United
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States, 495 U.S. 575, 602 (1990)). If, however, the underlying
statute criminalizes conduct that would not constitute a violent
felony as well as conduct that would constitute a violent felony,
then the putative predicate offense qualifies as a violent felony
only if the particular conviction actually embodied every element
of a violent felony. Id. To apply this principle, the jury must
find, or the defendant must admit (in the context of a guilty
plea), all the elements of a violent felony. In applying this
second step of the categorical approach, the court must restrict
its review to the record of conviction. Id. Typically, the record
includes the charging document, jury instructions, and verdict
form, or in the context of a guilty plea, the written plea
agreement and the transcript of the change-of-plea colloquy. Id.
(citing Shepard v. United States, 544 U.S. 13, 26 (2005)).
Herrick’s 1995 conviction for motor vehicle homicide
necessarily involves every element of a violent felony, thus
meeting the first step of the two-prong categorical approach. The
Wisconsin statute, entitled “Homicide by negligent operation of
vehicle”, under which Herrick was convicted, provides as follows:
1. Whoever causes the death of another human being
by the negligent operation or handling of a vehicle is
guilty of a Class G felony.
2. Whoever causes the death of an unborn child by
the negligent operation or handling of a vehicle is
guilty of a Class G felony.
WIS. STAT. § 940.10.
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The term “negligent” as used in WIS . STAT . § 940.10 is defined
in WIS. STAT . § 939.25 as follows:
1. In this section, “criminal negligence” means
ordinary negligence to a high degree, consisting of
conduct that the actor should realize creates a
substantial and unreasonable risk of death or great
bodily harm to another, except that for purposes of ss.
940.08(2), 940.10(2) and 940.24(2), “criminal negligence”
means ordinary negligence to a high degree, consisting of
conduct that the actor should realize creates a
substantial and unreasonable risk of death or great
bodily harm to an unborn child, to the woman who is
pregnant with that unborn child or to another.
2. If criminal negligence is an element of a crime
in chs. 939 to 951 or s. 346.62, the negligence is
indicated by the term “negligent” or “negligently”.
WIS. STAT. § 939.25.
Reading the two statutes together (section 940.10 and section
939.25), the Wisconsin motor vehicle homicide statute requires a
determination that the accused was criminally negligent, defined as
“conduct that the actor should realize creates a substantial and
unreasonable risk of death or great bodily harm to another.” WIS .
STAT. § 939.25. This definition of criminal negligence fits neatly
within the Guidelines definition for crime of violence: “conduct
that presents a serious potential risk of physical injury to
another.” U.S.S.G. § 4B1.2(a)(2). In fact, this court understands
the Wisconsin definition of criminal negligence to be triggered at
a higher risk threshold than that incorporated into the “crime of
violence” definition. While both standards call for an objective
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determination,3 criminal negligence applies only to conduct
creating a substantial and unreasonable risk of death or great
bodily harm, which necessarily includes conduct presenting a
serious potential risk of physical injury. The inverse is not
true, however. Conduct posing a serious potential risk of physical
injury does not necessarily rise to the level of risking death or
great bodily harm.
Thus, because criminal negligence is a required element for a
conviction under the Wisconsin motor vehicle homicide statute, and
a finding of criminal negligence necessarily meets the standard for
a crime of violence, there is no need for us to undertake step two
of the categorical analysis outlined above. There is no possible
formulation of the Wisconsin motor vehicle homicide statute that
3
“[T]he standard for criminal negligence is an objective one;
defendant’s conduct is judged from the perspective of a reasonably
prudent person.” State v. Barman, 183 Wis.2d 180, 203, 515 N.W.2d
493, 503 (Wis.App. 1994), review denied 520 N.W.2d 90 (1994).
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would criminalize conduct that would not constitute a violent
felony under the formal categorical approach to Guidelines.4
The analysis, however, does not end there. On April 16, 2008,
after the parties briefed this Court and presented their oral
arguments, the Supreme Court decided Begay v. United States, 553
U.S. ___, 128 S.Ct. 1581 (2008), introducing a new test for
determining whether a prior felony qualifies as a “violent felony”
pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e)(2)(B). Precedent in this circuit, as well as in others,
requires the application of case law interpreting “violent felony”
in ACCA to “crime of violence” in U.S.S.G. § 4B1.2(1) because of
the substantial similarity of the two sections. See United States
v. Williams, 529 F.3d 1, 6-7 (1st Cir. 2008); United States v.
Winter, 22 F.3d 15, 18 n.3 (1st Cir. 1994); see, e.g., United
4
Wisconsin case law supports the plain meaning of the
criminal negligence element of the motor vehicle homicide statute
as requiring, at a minimum, a serious risk of physical injury to
another. See, e.g., State v. Schutte, 295 Wis.2d 256, 272, 720
N.W.2d 469, 476 (Wis.App. 2006), review denied 297 Wis. 2d 320, 724
N.W. 2d 203 (2006) (“The degree of negligence required for criminal
culpability is different from ordinary negligence in that the
negligent conduct must ‘in general create a risk of serious
consequences, e.g., death or great bodily harm,’ and there must be
a ‘high probability that the [serious] consequences will result
from’ the conduct.”) (quoting Hart v. State, 75 Wis.2d 371, 383
n.4, 249 N.W.2d 810, 815 (Wis. 1977)); State v. Richard Knutson,
Inc., 196 Wis.2d 86, 110, 537 N.W.2d 420, 428 (Wis.App. 1995),
review denied, 540 N.W.2d 200 (1995) (“Criminal negligence differs
from ordinary negligence in two respects. First, the risk is more
serious-death or great bodily harm as opposed to simple harm.
Second, the risk must be more than an unreasonable risk-it must
also be substantial.”).
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States v. Archer, 531 F.3d 1347 (11th Cir. 2008) (holding on remand
that a Florida conviction for carrying a concealed weapon is not a
crime of violence under U.S.S.G. § 4B1.2(1) after the Eleventh
Circuit’s earlier opinion was vacated by the Supreme Court in light
of Begay). Given the relevance of Begay to this case, we requested
and received additional briefing from the parties.
The application of Begay to this case is not as simple as
placing a square peg in a square hole. Not only was the Begay
opinion tailored to the crime at hand, New Mexico’s Driving Under
the Influence law, see Begay, 128 S.Ct. at 1589 (describing the
majority’s position as “a piecemeal, suspenseful, Scrabble-like
approach to the interpretation” of ACCA) (Scalia, J., concurring),
but it was also a close decision. Williams, 529 F.3d at 7.
Moreover, the Court used language subject to varying
interpretations in its new test.
As a starting point, the Begay majority posed a two-part
question: is the crime at issue “roughly similar” in kind, as well
as in degree of risk posed, to the example crimes listed
immediately before the “otherwise” clause (i.e., burglary, arson,
extortion, or crimes involving use of explosives)?5 Begay, 128
S.Ct. at 1585. There the Supreme Court assumed that the lower
courts were correct in concluding that DUI presented the requisite
5
The relevant language of the Guidelines only differs in that
it specifies “burglary of a dwelling” instead of simple burglary.
See U.S.S.G. § 4B.1.2(a).
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level of risk. Id. at 1584. Nonetheless, the Court found that DUI
was not a violent felony pursuant to 18 U.S.C. § 924(e)(2)(B)(ii)
because “[i]t is simply too unlike the provision’s listed
examples[.]” Id. In other words, although DUI was roughly similar
in degree of risk posed, it was not roughly similar in kind.
The Supreme Court elucidated the similar-in-kind requirement
by finding that all of the examples typically involve “purposeful,
violent and aggressive conduct.”6 Id. at 1586 (internal citations
omitted). The Supreme Court went on to use “purposeful”
interchangeably with “intentional.” Id. at 1587-88. Perhaps
because it is common sense that a DUI is not violent or aggressive
in an ordinary sense, the Supreme Court did not define those terms
or explain in other than conclusory terms why a DUI was not violent
or aggressive. We note, therefore, that aggressive may be defined
as “tending toward or exhibiting aggression,” which in turn is
defined as “a forceful action or procedure (as an unprovoked
attack) esp. when intended to dominate or master.” MERRIAM -WEBSTER ’S
COLLEGIATE DICTIONARY 24 (11th ed. 2003). Violence may be defined as
6
The Supreme Court reasoned that conduct of this nature
“makes [it] more likely that an offender, later possessing a gun,
will use that gun deliberately to harm a victim.” Begay, 128 S.Ct.
at 1586. Although that particular rationale underlying the ACCA is
not always applicable in the broader Guidelines context, it applies
to felon-in-possession crimes such as that at issue here.
Moreover, when the sentencing is for other crimes, the Guidelines’
desire to reflect the defendant’s likelihood to engage in future
violent conduct strikes us as an equivalent rationale for
construing the residual clause as limited to conduct similar in
nature to the listed crimes.
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“marked by extreme force or sudden intense activity.” Id. at 1396.
Regardless of possible nuance in meaning, we understand that all
three types of conduct – i.e., purposeful, violent and aggressive –
are necessary for a predicate crime to qualify as a “violent
felony” under ACCA, or a “crime of violence” under the Guidelines.
See United States v. Williams, ___ F.3d ___, 2008 WL 3266912, *6
(8th Cir. Aug. 11, 2008) (“All characteristics should typically be
present before an ‘otherwise’ crime reaches the level of an example
crime.”).
Applying the Begay standard to this case, we conclude that
Wisconsin’s vehicular homicide felony is not a crime of violence
pursuant to U.S.S.G. § 4B.1.2(a). Based on the statutory
definition of criminal negligence in Wisconsin, vehicular homicide
meets if not exceeds the necessary degree of risk to be a crime of
violence: it poses “a serious potential risk of physical injury to
another.” It is not, however, similar in kind to the enumerated
offenses. Although it is no doubt violent, as a typical vehicular
homicide involves the death of a victim resulting from a forceful
collision, it is not necessarily aggressive, a term that dovetails
with purposeful because it involves a degree of intent. Intent,
however, is not an element of Wisconsin’s vehicular homicide
provision.7
7
Although the government argued convincingly that vehicular
homicide is violent, it made no effort to analyze it as purposeful
or aggressive.
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To recap, vehicular homicide for purposes of the Wisconsin
statute under which Herrick was convicted requires criminal
negligence, defined as conduct that the actor should realize
creates a substantial and unreasonable risk of death or great
bodily harm to another. WIS . STAT. §§ 939.25, 940.10. This is an
objective and not a subjective standard. State v. Steenberg Homes,
Inc., 223 Wis.2d 511, 522, 589 N.W.2d 668, 673 (1998) (“Criminal
negligence involves the same degree of risk as criminal
recklessness-an unreasonable and substantial risk of death or great
bodily harm. The difference between the two is that recklessness
requires that the actor be subjectively aware of the risk, while
criminal negligence requires only that the actor should have been
aware of the risk-an objective standard.”) (quoting Knutson, 196
Wis. 2d at 110, 537 N.W.2d at 428). Thus, it cannot be said that
someone convicted of vehicular homicide under the Wisconsin statute
knew of the risk involved in his or her conduct, nor can it be said
that such a person intended to kill or expose others to risky
conduct. Although vehicular homicide’s mens rea of criminal
negligence under this statute surpasses that of the DUI at issue in
Begay, which the Supreme Court described as a strict liability
crime, it is below that of other crimes that the Begay majority
listed as crimes that do not fall under the residual clause.
For example, the Begay court cited a federal statute
penalizing those who “recklessly” tamper with consumer products as
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an example of a crime that would have qualified as a violent felony
if there were no “similar in kind” requirement. Begay, 128 S.Ct.
at 1587 (citing 18 U.S.C. § 1365(a)). The Supreme Court also cited
an Arkansas statute which penalizes those who “recklessly cause
pollution of the waters or air of the state” as another example of
a crime similar enough in risk but not in kind to fall under the
test. Id. at 1587 (Ark. Code Ann. § 8-4-103(a)(2)(A)(ii)).
Looking to these examples from Begay, the Second Circuit held that
New York’s reckless endangerment law does not qualify as a crime of
violence under the Guidelines. United States v. Gray, ___ F.3d
___, 2008 WL 2853470, *3 (2d Cir. Aug. 4, 2008) (analyzing N.Y.
PENAL LAW § 120.25 (“A person is guilty of reckless endangerment in
the first degree when, under circumstances evincing a depraved
indifference to human life, he recklessly engages in conduct which
creates a grave risk of death to another person.”)). As the Second
Circuit explained, “[r]eckless endangerment on its face does not
criminalize purposeful or deliberate conduct.” Id. at *4. This
case does not require us to decide whether crimes with a
recklessness mens rea could ever come within the residual clause.
We conclude only that vehicular homicide involving criminal
negligence does not involve the requisite purposeful, intentional
or deliberate conduct. Accordingly, the vehicular homicide
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provision under which Herrick was convicted is not a crime of
violence pursuant to the residual clause of U.S.S.G. § 4B.1.2(a).8
IV. Conclusion
For the reasons discussed above, the sentence imposed by the
district court on March 30, 2007 is vacated and the case is
remanded for resentencing consistent with this opinion.
8
We note that the commentary to U.S.S.G. § 4B1.2(a) includes
manslaughter as a crime of violence without distinguishing between
voluntary and involuntary manslaughter, arguably suggesting that
the mens rea for the crime is not determinative. However, just as
the Supreme Court limited the broad language in the ACCA to crimes
involving “purposeful, violent and aggressive conduct,” so too is
it logical to construe the reference to manslaughter as extending
only to those crimes involving the requisite mens rea. Vehicular
homicide is related to but distinct from involuntary manslaughter.
See WHARTON’S CRIMINAL LAW § 170 (15th ed., vol. 2, 1994) (“In view of
the reluctance of juries to convict in motor vehicle fatality
cases, many jurisdictions have carved out of manslaughter a
separate offense, sometimes called ‘vehicular homicide’, for which
a lesser punishment is provided.”) The commentary does not
undermine our conclusion that it is necessary to examine the mens
rea required for a conviction of vehicular homicide within a
particular jurisdiction to determine if it is sufficiently similar
to that of the crimes listed in the otherwise clause. Indeed, the
decision of some jurisdictions to remove vehicular homicide from
the scope of manslaughter, and imposing less serious consequences,
reinforces our conclusion that vehicular homicide – as in this
case – will at times fall outside the scope of the clause.
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