dissenting.
I respectfully dissent.
Under the Sentencing Guidelines, the term “crime of violence” is defined as:
[A]ny 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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
U.S. Sentencing Guidelines Manual § 4B 1.2(a)(2) (2008).
The question to be answered in applying this definition relates to the “otherwise” clause, that is, whether the Minnesota offense of fleeing a peace officer by means of a motor vehicle, Minn.Stat. § 609.487 subdv. 3, typically and categorically “involves conduct that presents a serious potential risk of physical injury to another.” I submit that it does.
My initial concern is that although the principal opinion correctly identifies the question presented, its holding gives no heed to the term “potential risk” (as opposed to an actual risk), and in fact, the opinion omits the word “potential” in concluding that “we cannot say that the offense typically involves (1) conduct presenting a serious risk of physical injury to another, or (2) conduct that is violent and aggressive.”
Turning to the Minnesota statute, the term, “to flee,” by use of a motor vehicle “means to increase speed, extinguish motor vehicle headlights or taillights, refuse to stop the vehicle, or use other means with intent to attempt to elude a peace officer following a signal given by any peace officer to the driver of a motor vehicle.” Minn.Stat. § 609.487 subdv. 1. This is conduct that typically and categorically involves a serious POTENTIAL risk of physical injury to another. Indeed, in many instances, increasing speed, extinguishing headlights or taillights, or refusing to stop, is misconduct that, in and of itself, would give rise to a serious potential risk of physical injury to others, but that misconduct, when combined with the “intent to elude a peace officer” who has signaled the driver to stop, will invariably do so. The intent to elude, in other words, compounds the danger that already accompanies the misconduct. This is not mere “disobedience,” as the principal opinion puts it, but instead is a recipe for disaster. A chase ensues, of course, usually followed by a confrontation, and though the peace officer will typically follow safety protocols to avoid injury to others, that concern will typically be of little interest to the fleeing offender. By his actions, the fleeing offender has converted his vehicle to a dangerous instrumentality, and the pedestrians, bystanders, and other drivers who happen on the scene, not to mention the police themselves, are faced with a serious risk of physical injury. And indeed, at that point, the risk is no longer potential, but real and immediate.
The principal opinion correctly notes that the focus of our inquiry under the “categorical” approach is “on the generic elements of the offense and not on the specific facts underlying [the defendant’s] conviction,” but that focus does not preclude us from eliciting the specific facts in eases where those facts are representative and typical of the ways that the offense occurs. And that is the case here. Although the only injury was to property, rather than persons, the undisputed facts illustrate the risk to both:
[0]fficers observed the defendant driving a vehicle owned by an individual with an outstanding gross misdemeanor *728warrant and revoked driving status. A routine traffic stop was conducted. The defendant drove off when the officers approached the vehicle. Officers pursued the defendant while he was driving at excessive speeds. The defendant failed to adhere to traffic signs and lights. He lost control of his vehicle, skidded into a steel cemetery gate, and fled by foot. He was apprehended shortly after.
I also disagree with the principal opinion’s reliance on subdivision 4 of section 609.487 “that criminalizes the act of fleeing a peace officer in a motor vehicle when it causes ‘death ... or any bodily injury to any person other than the perpetrator’ and provides enhanced criminal penalties,” as if that subdivision’s express reference to death or bodily injury preempts or precludes subdivision 3 from the Guidelines definition of a crime of violence. To the contrary, the fact that subdivision 4 enhances the penalty for the same misconduct specified in subdivision 3 when death or bodily injury actually occurs reinforces the notion that the misconduct under subdivision 3 constitutes a serious potential risk that such physical injury will occur. To be sure, the fact that Minnesota has put in place the enhanced penalty in subdivision 4 where death or bodily injury occurs as a result of increasing speed, extinguishing headlights or taillights, or refusing to stop with the intent to elude a peace officer, is a tacit recognition by the Minnesota legislature that such misconduct does in fact create a serious potential risk of physical injury to another.
Ultimately, the majority misses the mark by misconstruing and misapplying the recent case of Begay v. United States, — U.S.-, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) and the Eighth Circuit’s subsequent application of Begay in United States v. Gordon, 557 F.3d 623 (8th Cir. 2009). Begay held that the “otherwise” clause in the definition of “violent felony” as used in the Armed Career Criminal Act, 18 U.S.C. sec. 924(e)(2)(B)(ii) — a definition that is virtually identical to the definition of “crime of violence” in the Sentencing Guidelines — “is not a catchall provision intended to reach every potentially dangerous prior offense.” Begay, 128 S.Ct. at 1584-85. It is instead intended to cover only those crimes “roughly similar, in kind as well as in degree of risk posed, to the examples themselves,” that is, to “burglary, arson, extortion and offenses involving the use of explosives.” Id. at 1585. The Begay Court then explained and emphasized that “roughly similar” crimes are those that “typically involve purposeful, ‘violent,’ and ‘aggressive’ conduct.” Id. at 1586. Applying these rules, the Court held that a New Mexico state felony offense for driving under the influence of alcohol is not a “violent felony.” Driving under the influence, the Court reasoned, is a strict liability crime, and “unlike the example crimes, the conduct for which the drunk driver is convicted ... need not be purposeful or deliberate.” Id. at 1587.
Thereafter, in United States v. Gordon, the Eighth Circuit applied the Begay rules to an altogether different crime, the Missouri offense of endangering the welfare of a child, which is committed, in pertinent part, by “knowingly act[ing] in a manner that created a substantial risk to the body or health of ... a child less than seventeen years old.” Gordon, 557 F.3d. This crime, the Court held, is not a “violent felony” because nothing in the statutory definition of the offense “suggests it ‘typically involved’ violent and aggressive conduct ... [rjather, a person can create a substantial risk to a child’s life, body or health through knowing actions that are neither violent nor aggressive, and this subsection is routinely applied to very passive behavior.” Id. at 626.
*729Of course, the crimes in both Begay and Gordon are wholly dissimilar to the Minnesota offense of fleeing a peace officer by means of a motor vehicle. Unlike driving under the influence in Begay, which is a strict liability crime, to flee with the intent to elude a peace officer is, by definition, conduct that is purposeful. And unlike endangering the welfare of a child in Gordon, which typically involves passive conduct, to flee with the intent to elude a peace officer who has given a signal to stop necessarily is conduct that is aggressive. But in addition, the conduct is also violent in the sense that driving a motor vehicle at excessive speeds, or with headlights and taillights extinguished, or refusing to stop when directed, and with the “intent to attempt to elude a peace officer,” will too often produce the violent result of a crash, or a person hit or run over, or a subsequent violent confrontation with police. Indeed, this is violent conduct that is “similar in kind as well as in degree of risk posed” to the violent conduct that is sometimes attendant to the commission of crimes of burglary, arson, extortion or explosives. And indeed, the risk of serious physical injury — maiming or even loss of life — is often greater where a motor vehicle collision is the source of the injury.
The substantial majority of the postBegay cases are in accord in holding that the respective state offenses that they address for fleeing an officer by means of a vehicle — all comparable to the Minnesota offense here — are offenses that typically involve purposeful, violent and aggressive conduct, and thus are “violent felonies” under the ACCA. See, e.g., United States v. Spells, 537 F.3d 743 (7th Cir. 2008)(Indiana); United States v. West, 550 F.3d 952 (10th Cir.2008)(Utah); United States v. LaCasse, 567 F.3d 763 (6th Cir.2009)(Michigan); United States v. Harrimon, 568 F.3d 531 (5th Cir.2009)(Texas).
Although the majority here concedes that the fleeing offense “typically involves purposeful conduct,” it maintains that the definition of the offense “criminalizes conduct that is neither violent nor aggressive, such as merely ‘extinguishing] motor vehicle headlights or taillights.’ ” The majority then concludes that, “We do not believe extinguishing one’s headlights or taillights to avoid being pulled over by a police officer implies a propensity to act violently toward others.” I first object to this analysis because it isolates only one of the several ways that the statute can be violated. This is in direct contravention of the Eighth Circuit’s admonition in Gordon, itself, that where a statute “can be violated in a number of ways, we look to the charging papers for the limited purpose of determining the specific elements for which [the defendant] was convicted.” Gordon, 557 F.3d at 625 (citing United States v. Livingston, 442 F.3d 1082, 1084 (8th Cir. 2006)). Here, the charging papers did not couch the offense in terms of extinguishing motor vehicle headlights or taillights, but instead charged defendant with driving at excessive speeds and disregarding traffic signals while police officers were in pursuit. Tellingly, the majority fails to address these other ways in which the statute can be violated.
Even if the majority was justified in cherry-picking that one part of the statute for its criticism, the analysis still doesn’t hold. To be sure, extinguishing motor vehicle headlights or taillights does not itself imply “propensity to act violently toward others,” but it most certainly does so when coupled with the “intent to attempt to elude a peace officer following a signal given by the peace officer.” The typical violator does not turn off the lights in order to slowly and stealthily sneak away from an officer who has just ordered him or her to stop, for in that scenario, he or she will likely be caught. The typical vio*730lator, instead, turns off the lights as one of several means to facilitate a getaway— means that nearly always include the other specified elements of the statute — increasing speed and refusing to stop — not to mention the statute’s unspecified “other means.”
Finally, I have a fundamental disagreement with the majority’s reasoning that “the elements of the statute do not require a confrontation, chase, or any other conduct indicating that the crime in question necessarily involves conduct presenting a serious risk of physical injury to another or conduct that is violent and aggressive,” which is to say that the statute should have specified that its violation must have resulted in a confrontation, chase or other conduct in order to constitute a serious risk of physical injury to another or conduct that is violent and aggressive. Under Begay, however, the government need only prove that the specified statutory misconduct typically presents a serious potential risk of physical injury to another, and there is no requirement that the statute itself identify just how that risk obtains.
In sum, I would hold that the district court did not err in finding that the crime of fleeing a peace officer by means of a motor vehicle is a crime of violence as defined under the Sentencing Guidelines, and for that reason, I would affirm the judgment of the district court.