United States v. Vanhook

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0095p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-5778
v.
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Defendant-Appellant. -
CHARLES VANHOOK,
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Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 06-20021-001—J. Daniel Breen, District Judge.
Argued: October 13, 2010
Decided and Filed: April 18, 2011
Before: BATCHELDER, Chief Judge; KEITH and ROGERS, Circuit Judges.

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COUNSEL
ARGUED: Edwin A. Perry, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Memphis, Tennessee, for Appellant. Jennifer Lawrence Webber, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF: Edwin A.
Perry, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for
Appellant. Jennifer Lawrence Webber, ASSISTANT UNITED STATES ATTORNEY,
Memphis, Tennessee, for Appellee.

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OPINION
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KEITH, Circuit Judge. This case arises out of defendant Charles Vanhook's
classification as an "armed career criminal" under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). At issue before the Court today is Vanhook’s appeal of
the district court’s conclusion that his prior conviction for facilitation of the burglary of

1
No. 09-5778 United States v. Vanhook Page 2

a building in violation of TENN. CODE ANN. §§ 39-11-403 and 39-14-402(a) constitutes
a violent felony for the purposes of the ACCA. For the reasons discussed below, we find
that facilitation of the burglary of a building under Tennessee law is not categorically a
violent felony. Accordingly, we VACATE the sentence imposed by the district court
and REMAND the case to the district court for further proceedings consistent with our
opinion here.

BACKGROUND

On August 3, 2006, defendant Charles Vanhook pled guilty to having been a
convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g).

After Vanhook entered his plea, the probation office for the Western District of
Tennessee completed a pre-sentence investigation report (“PSR”) identifying the
applicable sentencing guidelines for his offense. The PSR concluded that Vanhook
qualified as an “armed career criminal” as a result of having committed three violent
felonies and, therefore, should be sentenced accordingly. The report identified the three
qualifying offenses as two prior convictions for the sale of cocaine in January, 1990 and
a conviction for facilitation of burglary in July, 1998. After taking Vanhook’s status as
an armed career criminal into account, the report concluded that the applicable
sentencing range for him was between 188 and 235 months of imprisonment.

On October 27, 2006, Vanhook filed an objection to the report’s conclusion that
he qualified as an armed career criminal. Vanhook specifically disputed the report’s
finding that his prior conviction for facilitation of the burglary of a building constituted
a violent felony for the ACCA’s purposes.

After hearing arguments from both parties, the district court overruled Vanhook’s
objection, concluded he was an armed career criminal, and sentenced him to 180 months
of imprisonment.

On appeal, a separate panel of this Court affirmed the district court’s holding that
facilitation of burglary constituted a violent felony for purposes of the ACCA. United
States v. Vanhook, 510 F.3d 569 (6th Cir. 2007), vacated 129 S. Ct. 993 (2009). The
No. 09-5778 United States v. Vanhook Page 3

panel’s decision rested in large part on the law at the time, which did not consider the
defendant’s state of mind when he committed the allegedly qualifying offenses. The
panel specifically relied on this Court’s prior decision in United States v. Sawyers, 409
F.3d 732 (6th Cir. 2005), in which we found that an individual could have committed a
violent felony even if he only “facilitated” the ultimate felonious act. Vanhook, 510 F.3d
at 574-77.

Vanhook subsequently filed a petition for certiorari with the United States
Supreme Court. However, before the court could review the petition, the Supreme Court
issued its decisions in United States v. Begay, 553 U.S. 137 (2008) and United States v.
Chambers, 555 U.S. 122 (2009), which substantially altered the legal test courts must
use when determining whether a prior state court conviction constitutes a violent felony
for the ACCA’s purposes. In light of its decisions in Begay and Chambers, the Supreme
Court vacated Vanhook’s sentence and remanded the case to this Court. Vanhook, 129
S. Ct. 993 (2009). We, in turn, remanded the case to the Western District of Tennessee
for re-sentencing in accordance with the guidelines set out in Begay and Chambers.

Vanhook again filed a position paper objecting to the report’s finding that he was
an armed career criminal. On June 23, 2009, the district court, upon consideration of the
issue post-Begay, again found that facilitation of the burglary of a building was a violent
felony and, accordingly, concluded that Vanhook qualified as an armed career criminal.
Beyond stating that facilitation of the burglary of a building was similar to the crimes
listed in the ACCA’s “otherwise” clause, 18 U.S.C. § 924(e)(2)(B), the court provided
no further clarification as to why the crime constitutes a violent felony.

On June 30, 2009, Vanhook timely appealed the district court’s conclusion.
No. 09-5778 United States v. Vanhook Page 4

STANDARD OF REVIEW

We review de novo a district court's determination that a defendant should be
sentenced as an armed career criminal. Sawyers, 409 F.3d at 736.

ANALYSIS

The ACCA provides that "a person who violates [§] 922(g) of this title and has
three previous convictions by any court . . . for a violent felony or a serious drug offense,
or both, committed on occasions different from one another, . . . shall be fined under this
title and imprisoned not less than fifteen years." 18 U.S.C. § 924(e)(1). Section
924(e)(2)(B), in turn, defines a "violent felony" as any crime punishable by
imprisonment of more than one year 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." § 924(e)(2)(B).

In determining whether a particular offense qualifies as a violent felony, courts
must use the “categorical approach.” That is, they must not consider the individual facts
and circumstances of the offense, but rather must only look to the statutory terms of the
alleged felony. United States v. Bartee, 529 F.3d 357, 359 (6th Cir. 2008); see also
James v. United States, 550 U.S. 192, 202 (2007).1 If, however, the statutory definition
is ambiguous – it covers some actions which would constitute non-violent felonies and
other actions that would not constitute violent felonies – the court may expand its inquiry
beyond the statute’s text. In such cases, the court may additionally consider the
“charging document, written plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant assented” to see if they
“necessarily” establish the nature of the prior offense. United States v. Foreman, 436
F.3d 638, 641 (6th Cir. 2006); see also Shepard v. United States, 544 U.S. 13, 26 (2005).

1
This approach “avoid[s] ‘the practical difficulties and potential unfairness’ of permitting a
sentencing court to relitigate facts and delve into the details of a prior conviction.” Bartee, 529 F.3d at 359
(quoting United States v. Armstead, 467 F.3d 943, 947 (6th Cir. 2006)).
No. 09-5778 United States v. Vanhook Page 5

The parties agree that the first clause of § 924(e)(2)(B) is not applicable here; the
Tennessee offense of facilitation of the burglary of a building does not have as one of
its elements the use, attempted use, or threatened use of physical force against another.
Rather, the dispute in this case centers upon whether the ACCA’s second clause – the
“otherwise” clause – covers the offense at issue.

As noted, the Sixth Circuit initially considered Vanhook’s appeal of his
classification as an armed career criminal prior to the Supreme Court’s decision in
Begay.2 Under the pre-Begay framework, the only relevant question was whether the
offense posed a serious risk of physical injury to others. James, 550 U.S. at 207-08.
Given the limited nature of the inquiry, this and other courts repeatedly found a broad
range of offenses, including some different in kind from the offenses specified in the
ACCA, to be violent felonies. See e.g., United States v. Gibbs, 626 F.3d 344, 353-54
(6th Cir. 2010) (explaining that the Sixth Circuit no longer adheres to its past rulings
which generally treated "walkaway" escape offenses as crimes of violence).

In Begay, the Supreme Court, recognizing that certain crimes that posed a serious
risk of violence were entirely unlike the crimes Congress had listed in the ACCA, set out
a revised framework for determining whether an offense qualifies as a violent felony.
Begay, 553 U.S. at 143. After Begay, whether an offense presents a serious risk of
physical injury to others is only the initial inquiry. For a crime to qualify as a violent
felony, it must also be similar “in kind as well as in degree of risk posed” to the crimes
Congress specifically stated that the otherwise clause applied to. Id. That is, the
qualifying crime must be “purposeful, violent, and aggressive.” Id. at 144-45.

2
Generally, "[a] panel of this Court cannot overrule the decision of another panel." Darrah v.
City of Oak Park, 255 F.3d 301, 309 (6th Cir. 2001)). However, “this case presents the unique situation
in which an inconsistent decision of the United States Supreme Court requires modification of the [prior]
decision." Id.
No. 09-5778 United States v. Vanhook Page 6

I. Serious Risk of Harm

Tennessee law punishes three types of burglary: burglary of a habitation
(aggravated burglary), burglary of a building, and burglary of a vehicle. TENN. CODE
ANN. §§ 39-14-402, 403. A person is criminally liable for the burglary of a building if
he, "without the effective consent of the property owner, [e]nters a building other than
a habitation (or any portion thereof) not open to the public, with intent to commit a
felony." § 39-14-402(a)(1). Under Tennessee law, a "person is criminally responsible
for the facilitation of a felony, if, knowing that another intends to commit a specific
felony, but without the intent required for criminal responsibility [for that offense] . . .
the person knowingly furnishes substantial assistance in commission of the felony."
§ 39-11-403(a).

As this Court noted when initially considering Vanhook’s appeal: “Facilitators
in Tennessee . . . are not the legal equivalent of accessories before the fact or aiders and
abetters, the latter categories being treated the same as principals under the law.”
Vanhook, 510 F.3d at 574; compare § 39-11-401(a) and § 39-11-402(2) with
§ 39-11-403(a). Rather, "facilitation of the commission of a felony is an offense of the
class next below the felony facilitated by the person so charged." § 39-11-403(b); see
also State v. Fowler, 23 S.W.3d 285, 288 (Tenn. 2000) ("[F]acilitation is a
lesser-included offense when a defendant is charged with criminal responsibility for the
conduct of another.").

As the statutory definition of facilitation of the burglary of a building is clear and
unambiguous, see TENN. CODE ANN. § 39-11-403 (facilitation of a felony), and
§ 39-14-402(a)(1) (burglary of a building), we simply need to examine the relevant
statutory elements in order to determine whether Vanhook's prior conviction constituted
a violent felony under § 924(e)(2)(B)(ii). See Sawyers, 409 F.3d at 736.

Even after Begay, there remains little question that the act of facilitating the
burglary of a building creates a serious risk of violence. As noted, Begay held that for
a crime to fall within the otherwise clause it must pose a similar degree of risk of
physical injury as the example crimes and be similar in kind to them. The Supreme
No. 09-5778 United States v. Vanhook Page 7

Court did not take issue with the Tenth Circuit’s conclusion, in Begay, that driving under
the influence poses a significant threat of injury to another. Accordingly, Begay does
not impact our court’s earlier holdings that facilitation of burglary poses a risk of
physical injury to another that is similar to the crimes listed.

Furthermore, beyond merely this Court’s precedents we have good reason to
reach the conclusion we do. As the Supreme Court has explained, burglary-related
offenses often involve the serious potential for physical injury. “The fact that an
offender enters a building to commit a crime often creates the possibility of a violent
confrontation between the offender and an occupant, caretaker, or some other person
who comes to investigate.” Taylor v. United States, 495 U.S. 575, 588 (1990).

Vanhook attempts to distinguish facilitation of burglary from other burglary
offenses on the grounds that it requires less criminal culpability than other burglary
offenses. Additionally, Vanhook argues facilitation of burglary is merely a lesser
included offense of burglary. While these certainly are the case, they are not relevant
to the inquiry under the first prong of the test. Regardless of whether facilitation of the
burglary of a building requires less culpability than other burglary offenses or whether
it is a lesser included offense of other crimes, the sole relevant question, under the first
prong, is whether the crime created a serious risk of harm to others. In this case, the
standard is met. By definition, when an individual “facilitates” a burglary, he provides
substantial assistance towards the commission of an act which, as explained, has the
strong potential of ending in a violent result.3

This is not to say that Vanhook does not raise valid points. Rather, arguments
concerning whether the offense for which he was convicted is of the proper nature or

3
We are not saying, however, that in every instance where an individual is guilty of having in
some way assisted or encouraged the commission of another act which likely will have a violent result,
the assistance or encouragement – no matter how minor or unrelated to the violent act – will create a
serious risk of violence. There may be circumstances in which the government may choose to criminalize
assistance or encouragement so minimal that it would have little or no tangible role in the ultimate
occurrence of the violent act. However, we are not faced with such a circumstance here. As noted,
facilitation, by definition, requires that the defendant provided substantial assistance towards the
commission of the ultimately violent offense.
No. 09-5778 United States v. Vanhook Page 8

type to be considered a violent felony are more properly addressed under the second
prong of the test.

II. Similarity to the Enumerated Offenses: Purposeful, Violent, and
Aggressive

A more difficult question is whether facilitation of the burglary of a building is
similar in kind to the offenses listed in the “otherwise” clause of the ACCA; specifically
whether it is “purposeful, violent, and aggressive.” Begay, 553 U.S. at 144-45.

As noted, in Begay, the Supreme Court reversed the Tenth Circuit’s finding that
driving under the influence constitutes a violent felony. Id. at 148. The Court reasoned
that while driving under the influence created a serious risk of physical injury to another,
because it did not require that the defendant have acted with any intent to cause such
injury, it was essentially similar to crimes which imposed strict liability on offenders.
Id. at 145. Such crimes, because they imposed liability on the defendant regardless of
the intent he or she possessed at the time of the crime, were clearly different from the
crimes Congress listed in the ACCA, each of which involved purposeful conduct on the
part of the defendant. Id. at 146. Accordingly, Congress when creating the clause was
not referring to such crimes: “We have no reason to believe that Congress intended to
bring within the statute’s scope these kinds of crimes, far removed as they are from the
deliberate kind of behavior associated with violent criminal use of firearms.” Id. at 147.

Though they were not before the Court, the Supreme Court additionally listed
several other offenses which only require that the defendant have acted recklessly as
examples of crimes not sufficiently purposeful such that the ACCA’s otherwise clause
covers them. See id. at 146 (listing reckless pollution and reckless tampering with
consumer products as crimes not typically committed by armed career criminals). The
Sixth Circuit, among others, has since followed suit finding that several crimes which
only require a mens rea of recklessness or gross negligence do not qualify as violent
felonies under the ACCA. See United States v. McFalls, 592 F.3d 707 (6th Cir. 2010)
(holding that defendant’s conviction under South Carolina’s aggravated assault statute
did not qualify as a crime of violence because it only required that the defendant acted
No. 09-5778 United States v. Vanhook Page 9

recklessly); United States v. Baker, 559 F.3d 443 (6th Cir. 2009) (finding that violation
of Tennessee reckless endangerment statute did not qualify as a crime of violence);
United States v. Johnson, 308 F. App’x. 968 (6th Cir. 2009) (same); United States v.
Culbertson, 389 F. App’x 515, 520 (6th Cir. 2010) (concluding that Michigan
manslaughter with a motor vehicle conviction was not a violent felony because
defendant must only have acted with gross negligence); United States v. Johnson, 376
F. App’x. 205, 207 (3d Cir. 2010) (concluding that "because a Pennsylvania terroristic
threats offense requires a minimum mens rea of recklessness rather than intent, it is not
a ‘crime of violence’ for purposes of § 2L1.2.").4

Meanwhile, courts have continued to find that the ACCA covers aggressive and
violent offenses which require that the defendant have acted intentionally. United States
v. Young, 580 F.3d 373 (6th Cir. 2009) (holding that violation of Michigan fleeing and
eluding statute that required the defendant have acted willfully was a violent felony);
United States v. Sykes, 598 F.3d 334 (7th Cir. 2010) (concluding that conviction under
Indiana’s fleeing and eluding statute was violent felony because the defendant must have
acted knowingly and intentionally); United States v. Noah, No. 09-5756, 2010 U.S. App.
LEXIS 22922 (6th Cir. Nov. 4, 2010) (finding that Tennessee crime which required that
defendant have “unlawfully and intentionally” fled from an officer was a crime of
violence).

Similarly, other circuits that have addressed the issue have found that crimes
which require that the defendant have acted knowingly are sufficiently purposeful to be
considered violent felonies for the ACCA’s purposes. United States v. Crews, 621 F.3d
849 (9th Cir. 2010) (holding that Oregon second degree assault statute requiring that

4
Given the similarity between the ACCA's definition of "violent felony" and the definition of
"crime of violence" contained in the pertinent guideline provision, courts, including this one, have taken
the position that authority interpreting one phrase is generally persuasive when interpreting the other. See,
e.g., United States v. Kinsey, No. 09-5202, 2010 U.S. App. LEXIS 23507, at *7 (6th Cir. Nov. 15, 2010)
(noting that “a ‘violent felony’ under [the] ACCA, . . . is – for these purposes – treated exactly the same
as a ‘crime of violence’ under the Guidelines”); United States v. Sprouse, 394 F.3d 578, 580 (8th Cir.
2005) (“Because the definitions of crime of violence and violent felony are identical, the same analysis
applies in determining whether [the defendant’s] convictions fall within the conduct defined.”); United
States v. Winter, 22 F.3d 15, 18 n.3 (1st Cir. 1994).
No. 09-5778 United States v. Vanhook Page 10

defendant acted knowingly or intentionally was a crime of violence); United States v.
Dismuke, 593 F.3d 582 (7th Cir. 2010) (concluding that Wisconsin vehicular fleeing
offense that punished knowing conduct was a violent felony); United States v. Hampton,
585 F.3d 1033 (7th Cir. 2009) (holding that Indiana residential entry statute punishing
knowing or intentional conduct is a violent felony); United States v. Johnson, 587 F.3d
203 (3d Cir. 2009) (finding that Pennsylvania simple assault statute that criminalized
knowing actions was a crime of violence); United States v. Wilson, 568 F.3d 670 (8th
Cir. 2009) (finding that knowing or intentional conduct prohibited by Missouri child
abuse statute was purposeful); United States v. Spells, 537 F.3d 743 (7th Cir. 2008)
(finding conduct criminalized by Indiana fleeing and eluding statutes was purposeful
because it requires that the defendant have acted knowingly or intentionally).

The Sixth Circuit, however, has yet to directly address the matter. In United
States v. Mosley, this Court considered whether a Michigan statute criminalizing the
knowing failure to comply with an officer’s lawful demand described a crime of
violence. 575 F.3d 603, 606-07 (6th Cir. 2009). While the Court noted that such conduct
will often be purposeful, it did not conclusively address the matter. Rather, the Court
concluded that because the statute encompassed conduct that was neither violent nor
aggressive, the conduct was not a crime of violence, regardless of whether it was
purposeful. Id. at 607.

This is one of the rare cases in which a statute criminalizing “knowing” conduct
does not describe conduct sufficiently purposeful to qualify as a violent felony. See id.;
Crews, 621 F.3d at 857 n.7 (“We do not hold that ‘knowingly’ always suffices under
Begay, for perhaps there are some offenses that, while committed ‘knowingly,’ do not
typically involve purposeful, violent, and aggressive conduct.”).

Importantly, this case is distinguishable from each of the aforementioned in that
it presents the novel question of whether an individual commits a purposeful crime when
he acts with the knowledge that another intends to commit a crime, but without the intent
to commit or assist in the commission of the crime itself. As noted above, to be guilty
of facilitation of a burglary, an individual, by definition, must have acted “without the
No. 09-5778 United States v. Vanhook Page 11

intent required for criminal responsibility” for the ultimate criminal act. TENN. CODE
ANN. § 39-11-403. This key distinction provides the basis for our decision today. Not
only do statutes which criminalize “knowing” conduct generally not exclude individuals
who act intentionally, but they, in most cases, assume that the individual, in fact, acted
with such intent. For example, in Crews, the defendant challenged the lower court’s
classification of his prior conviction for “knowingly us[ing] a deadly weapon to assault
another” as a “crime of violence.” 621 F.3d at 855-57. The defendant argued, among
other things, that the conduct described by the statute was not sufficiently purposeful to
justify a sentencing enhancement. Id. at 856. The court rejected this argument,
explaining that even though the statute only required that the defendant have acted
knowingly, in almost every instance the individual would also have acted intentionally:

We have trouble imagining a circumstance in which a person could
knowingly use a dangerous weapon without intending to do so. Indeed,
Crews has not provided any case in which an individual who knowingly
engaged in an assault by means of a deadly or dangerous weapon acted
without the intent to cause harm. In short, convictions involving
knowing use of a deadly weapon typically involve “purposeful” conduct
within the meaning of Begay.

Id. at 856-57. An examination of the other “knowing” crimes found to be sufficiently
purposeful to be considered violent felonies or crimes of violence reveal that they
likewise would almost always require the defendant to have acted intentionally.5 This

5
For example, in United States v. Hampton, the Seventh Circuit held that an Indiana statute that
criminalized knowingly entering the residence of another qualified as a violent felony. 585 F.3d 1033,
1044 (7th Cir. 2009). It is difficult to understand how a defendant could knowingly enter the home of
another without intending to do so. Similarly, it would be difficult to imagine a scenario under which an
individual may knowingly inflict cruel and inhuman punishment upon a child, knowingly flee from a police
officer after the officer has clearly identified himself or herself, or knowingly assault another person and
not act with the intent to commit each of the aforementioned acts. United States v. Wilson, 568 F.3d 670
(8th Cir. 2009) (finding that knowing or intentional conduct prohibited by Missouri child abuse statute was
purposeful); United States v. Spells, 537 F.3d 343 (7th Cir. 2008) (finding knowing or intentional conduct
criminalized by Indiana fleeing and eluding statutes was purposeful); United States v. Johnson, 587 F.3d
203 (3d Cir. 2009) (holding that Pennsylvania simple assault statute criminalizing knowing actions is a
crime of violence).
No. 09-5778 United States v. Vanhook Page 12

case, in contrast, presents a situation in which the intent to commit or assist will be
lacking not merely in one instance, but in every instance.6

Our decision is further buttressed by the fact that facilitation of burglary is not
necessarily the type of violent or aggressive crime generally characterized as a violent
felony. Aggressive, violent acts are “aimed at other persons or property where persons
might be located and thereby injured.” United States v. Archer, 531 F.3d 1347, 1351
(11th Cir. 2008). “They involve overt, active conduct that results in harm to a person
or property.” United States v. Polk, 577 F.3d 515, 519 (3d Cir. 2009); see also United
States v. Herrick, 545 F.3d 53, 58 (1st Cir. 2008) (“[A]ggressive 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[ecially] when intended to dominate or
master.’ Violence may be defined as ‘marked by extreme force or sudden intense
activity.’” (citation omitted)). A cursory review of convictions under the statute reveals
that the actions of defendants guilty of facilitation of the burglary of a building may not
meet this standard. For example, in Tennessee v. Mulholland, No. 03C01-9410-CR-
00396, 1995 Tenn. Crim. App. LEXIS 689 (Aug. 16, 1995), the defendant was convicted
of facilitating the burglary of a building because: 1) he provided directions to the home
of the victim to a third-party driver on the day of the crime; and 2) was a passenger in
a car driven by a third party to the scene of the crime. Id. at *6-8. The third-party driver
ultimately relied on directions provided by the burglar when driving to the victim’s
home. Id. at *7. At no point did the government present any evidence that the burglar
and the defendant spoke of the robbery. Even assuming, as the state court did, that the
defendant passenger was aware of the burglar’s plan to rob the home, id. at *8, it is
questionable whether simply providing directions to a third party, which the third party

6
Additionally, we are not the sole court to reach this conclusion. The United States District
Court for the Southern District of Texas, upon considering TENN. CODE ANN. § 39-11-403, similarly found
that it was too unlike the crimes Congress listed in the ACCA to merit a sentencing enhancement: “The
requisite mens rea elements differ. A person convicted under [§] 403 does not have to intend to deprive
a person of property or intend to put someone in fear of bodily injury; rather [§] 403 requires only that the
person knows someone else intends to do so.” United States v. Trejo-Palacios, 418 F. Supp. 2d 915, 920
(S.D. Tex. 2006).
No. 09-5778 United States v. Vanhook Page 13

did not rely upon, would be the type of “violent” and “aggressive” conduct towards
which the otherwise clause is directed.

Regardless, the government presents little reason for us to doubt our decision.
Rather than addressing the novel issue before this Court – whether facilitation of
burglary is sufficiently purposeful, violent, and aggressive – it devotes the virtual
entirety of its brief, save one paragraph, to the discussion of whether facilitation of
burglary creates a serious risk of violence. As noted, the Supreme Court’s decision in
Begay did nothing to undercut our previous decision on this point. It appears that the
government mistakenly conflates the first and second prongs of the test pronounced in
Begay. While they sound similar, whether an act creates a serious risk of physical
injury and whether an act is violent and aggressive are two distinct inquiries. While in
many cases an act that creates a serious risk of physical injury will be violent and
aggressive, the presence of the former in no way dictates the latter. "Begay's second
requirement entails more than a mere likelihood that another will be physically injured
as a result of the offense – it requires conduct that is similar [in kind] to the comparative
offenses. . . . " United States v. Marquez, No. 09-50372, 2010 U.S. App. LEXIS 23359,
*45-46 (5th Cir. Nov. 10, 2010) (Dennis, J., dissenting).

Ultimately, the sole argument the government provides in support of its position
as to the second prong is the fact that this Court has found convictions under Michigan’s
fleeing and eluding statute to qualify as violent felonies. Unfortunately for the
government, this argument is of little usefulness. That one crime was found to be a
violent felony in no way implies that another crime with entirely different elements and
circumstances should likewise be classified as such. The crimes are readily
distinguishable. Michigan’s fleeing and eluding statute, by definition requires that the
assailant have acted purposefully, applying only to those "who willfully fail [] to obey
[an officer's] direction." MICH. COMP. LAWS § 257.602a. As explained above,
Tennessee’s facilitation statute extends beyond such persons to include those who do not
share the chief perpetrator’s intent to burglarize the building.
No. 09-5778 United States v. Vanhook Page 14

CONCLUSION

For the aforementioned reasons, the district court's classification of defendant
Charles Vanhook as an armed career criminal and the resulting sentence it imposed are,
hereby, VACATED. We REMAND the case to the district court for further
proceedings consistent with our decision.