United States v. Roseboro

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 07-4348
RALPH ANTHONY ROSEBORO,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert J. Conrad, Jr., Chief District Judge.
(3:06-cr-00005)

Argued: September 23, 2008

Decided: January 5, 2009

Before NIEMEYER, Circuit Judge,
HAMILTON, Senior Circuit Judge, and
T. S. ELLIS, III, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Senior Judge
Hamilton wrote the opinion, in which Senior Judge Ellis
joined. Judge Niemeyer wrote a dissenting opinion.

COUNSEL

ARGUED: Ross Hall Richardson, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Charlotte, North
2 UNITED STATES v. ROSEBORO
Carolina, for Appellant. Adam Christopher Morris, OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Exec-
utive Director, Kevin A. Tate, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina, for Appellee.

OPINION

HAMILTON, Senior Circuit Judge:

The Armed Career Criminal Act (ACCA) imposes a man-
datory minimum fifteen-year sentence on felons who unlaw-
fully possess, among other things, firearms, and who also
have three or more previous convictions for committing cer-
tain drug crimes or "violent felon[ies]." 18 U.S.C. § 924(e)(1).
In United States v. James, this court held that a South Caro-
lina failure to stop for a blue light violation, S.C. Code Ann.
§ 56-5-750(A), constitutes a violent felony under the ACCA.
337 F.3d 387, 390-91 (4th Cir. 2003). The principal issue pre-
sented in this appeal is whether the test we applied in James
for determining when a crime constitutes a violent felony
under the ACCA survives the United States Supreme Court’s
decision in Begay v. United States, 128 S. Ct. 1581 (2008).
We conclude that it does not.

I

The relevant facts of this case are not in dispute. On Janu-
ary 23, 2006, a federal grand jury sitting in the Western Dis-
trict of North Carolina charged Ralph Roseboro with violating
18 U.S.C. § 922(g)(1), which prohibits felons from possess-
ing, among other things, firearms. On June 29, 2006, a jury
convicted Roseboro of this offense.
 UNITED STATES v. ROSEBORO 3
In preparation for sentencing, a probation officer prepared
a presentence investigation report (PSR). The probation offi-
cer calculated Roseboro’s Base Offense Level to be 14,
United States Sentencing Commission, Guidelines Manual
(USSG), § 2K2.1(a)(6). Two levels were added because the
firearm Roseboro possessed was stolen. Id. § 2K2.1(b)(4).
Because Roseboro possessed the firearm in connection with
another felony offense, namely, burglary, Roseboro’s Offense
Level was increased by four more levels. Id. § 2K2.1(b)(5).
Finally, because the probation officer determined that Rose-
boro obstructed justice, Roseboro’s Offense Level was
increased by two more levels, id. § 3C1.1, resulting in a Total
Offense Level of 22. The Total Offense Level of 22, when
coupled with a Criminal History Category VI, produced a sen-
tencing range of 84 to 105 months’ imprisonment.

Both the government and Roseboro filed objections to the
PSR. The government objected to the PSR on the basis that
it did not reflect that Roseboro was an Armed Career Criminal
under the ACCA. Section 924(e)(1) provides:

[A] person who violates section 922(g) of this title
and has three previous convictions . . . for a violent
felony . . . committed on occasions different from
one another, such person shall be . . . imprisoned not
less than fifteen years.

18 U.S.C. § 924(e)(1). The term "violent felony" is defined as
any crime punishable by imprisonment for a term exceeding
one year that either "has as an element the use, attempted use,
or threatened use of physical force against the person of
another," id. § 924(e)(2)(B)(i), or "is burglary, arson, or extor-
tion, involves use of explosives, or otherwise involves con-
duct that presents a serious potential risk of physical injury to
another." Id. § 924(e)(2)(B)(ii). According to the government,
Roseboro’s three prior South Carolina failure to stop for a
blue light convictions were violent felonies because each of
4 UNITED STATES v. ROSEBORO
those convictions involved conduct that presented a serious
potential risk of physical injury to another.1

Roseboro objected to the PSR on the basis that the
§ 2K2.1(b)(4) and § 2K2.1(b)(5) enhancements were not war-
ranted. Consequently, Roseboro urged the probation officer to
reduce his Total Offense Level by 6 levels, resulting in a
Total Offense Level of 16, which when coupled with a Crimi-
nal History Category VI, resulted in a sentencing range of 46
to 57 months’ imprisonment.

Roseboro also objected to the government’s suggestion that
he was an Armed Career Criminal. According to Roseboro,
under the categorical approach, he was not eligible for any of
the career offender enhancements (Armed Career Criminal or
Career Offender) because none of his South Carolina failure
to stop for a blue light violations were either a crime of vio-
lence or a violent felony.2
1
In December 1996, Roseboro was convicted of a South Carolina failure
to stop for a blue light violation and sentenced to two years’ imprison-
ment, suspended on the completion of ninety days. In February 2001,
Roseboro again was convicted for failing to stop for a blue light; this time
he was sentenced to three years’ imprisonment, suspended on the comple-
tion of one year. In March 2002, Roseboro yet again was convicted of fail-
ing to stop for a blue light and was sentenced to two years’ imprisonment.
2
Under the Sentencing Guidelines, a defendant who is a Career
Offender is subject to a higher sentence. A defendant qualifies as a Career
Offender if his instant felony offense and two of his prior felony offenses
are either a crime of violence or a controlled substance offense. USSG
§ 4B1.1(a). Section 4B1.2 defines a crime of violence as
any offense under federal or state law, punishable by imprison-
ment 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 con-
duct that presents a serious potential risk of physical injury to
another.
USSG § 4B1.2. Because the language defining a violent felony in § 924(e)
is nearly identical to and materially indistinguishable from the language
 UNITED STATES v. ROSEBORO 5
The probation officer sided with the government and con-
cluded that Roseboro was an Armed Career Criminal based
on his conclusion that Roseboro’s three South Carolina failure
to stop for a blue light convictions were violent felonies. The
effect of this conclusion had a significant impact on Rose-
boro’s sentencing range. The PSR’s recommended sentencing
range moved from 84 to 105 months’ imprisonment (Total
Offense Level of 22/Criminal History Category VI) to 262 to
327 months’ imprisonment (Total Offense Level of 34/Crimi-
nal History Category VI).

In preparation for sentencing, both the government and
Roseboro filed sentencing memorandums. Roseboro argued,
among other things, that his three prior South Carolina failure
to stop for a blue light convictions were not violent felonies
because the offenses did not "categorically meet the definition
of a violent felony as defined in 18 U.S.C. § 924(e)." In
response, the government contended that the issue was con-
trolled by our decision in James, where we held that a South
Carolina failure to stop for a blue light violation was a violent
felony because the offense involved "the potential for serious
injury to another." 337 F.3d at 391.

At sentencing, in arguing against the conclusion that he was
an Armed Career Criminal, Roseboro rested on his pleadings
and made a variety of arguments to the district court, all of
which were rejected. Agreeing with both the probation officer
and the government that Roseboro was an Armed Career
Criminal, the district court calculated Roseboro’s sentencing
range to be 262 to 327 months’ imprisonment. In sentencing
Roseboro, the district court expressly considered the factors in
18 U.S.C. § 3553(a) and sentenced Roseboro to the low end
of the sentencing range, 262 months’ imprisonment.

defining a crime of violence in USSG § 4B1.2, we look to our case law
interpreting both sections when examining whether a prior crime falls
within these sections. United States v. Johnson, 246 F.3d 330, 333 (4th
Cir. 2001).
6 UNITED STATES v. ROSEBORO
Roseboro noted a timely appeal.

II

A

In James, we addressed the question of whether a South
Carolina failure to stop for a blue light violation was a violent
felony under the ACCA. In resolving this question, we first
determined that, under South Carolina law, a failure to stop
for a blue light violation was a crime punishable by a term of
imprisonment exceeding one year. 337 F.3d at 390 (noting
that a violation of § 56-5-750(A), first offense, is punishable
by a term of imprisonment of up to three years). After exam-
ining the elements of a South Carolina failure to stop for a
blue light violation, we determined that the offense did not
have as an element the use, attempted use, or threatened use
of physical force against another person. Id. Consequently, we
turned to whether a South Carolina failure to stop for a blue
light violation otherwise involved conduct that presented a
serious potential risk of physical injury to another person. Id.
In assessing this question, we applied a "‘categorical
approach, whereby the court looks only at the fact of convic-
tion and the statutory definition of the offense, and not to the
underlying facts of a specific conviction.’" Id. (quoting
United States v. Thomas, 2 F.3d 79, 80 (4th Cir. 1993)).3
3
The Supreme Court has allowed the consultation of additional materi-
als when the statutory provision at issue defines multiple crimes, Taylor
v. United States, 495 U.S. 575, 599 (1990), or in those cases "where the
state statute is categorically overbroad—that is, where it is evident from
the statutory definition of the state crime that some violations of the statute
are ‘crimes of violence’ and others are not." United States v. Diaz-Ibarra,
522 F.3d 343, 348 (4th Cir. 2008). This is commonly referred to as the
"modified categorical approach." Id. (citation and internal quotation marks
omitted). In cases involving guilty pleas under the modified categorical
approach, courts look to "the terms of the charging document, the terms
of a plea agreement or transcript of colloquy between judge and defendant
in which the factual basis for the plea was confirmed by the defendant, or
 UNITED STATES v. ROSEBORO 7
Under this approach, we asked whether the statute at issue
"‘proscribe[d] generic conduct with the potential for serious
physical injury to another.’" Id. (quoting United States v. Cus-
tis, 988 F.2d 1355, 1363 (4th Cir. 1993)); see also United
States v. Hairston, 71 F.3d 115, 118 (4th Cir. 1995) (holding
that any escape, even an escape by stealth, created a serious
potential risk of physical injury to another and, therefore, an
escape offense, however effected, is a violent felony under
§ 924(e)(1)(B)(ii)). In concluding that a South Carolina fail-
ure to stop for a blue light violation posed a potential for seri-
ous physical injury to another, we stated:

Applying the categorical approach, we find that fail-
ing to stop for a blue light generally proscribes con-
duct that poses the potential for serious injury to
another.

Most cases of failing to stop for a blue light involve
the deliberate choice by the driver to disobey the
police officer’s signal. This disobedience poses the
threat of a direct confrontation between the police
officer and the occupants of the vehicle, which, in
turn, creates a potential for serious physical injury to
the officer, other occupants of the vehicle, and even
bystanders.

James, 337 F.3d at 390-91.

to some comparable judicial record of this information." Shepard v.
United States, 544 U.S. 13, 26 (2005). In other cases, courts look to the
jury instructions or the charging documents. United States v. Thompson,
421 F.3d 278, 281-82 (4th Cir. 2005). The Supreme Court made clear that
the strict limits on the type of evidence that we may consider under the
modified categorical approach are of constitutional dimension—they pre-
vent us from usurping the jury’s role (and thus violating the defendant’s
Sixth Amendment rights) by finding facts about a past crime under the
guise of determining the nature of the crime. Shepard, 544 U.S. at 24-26.
8 UNITED STATES v. ROSEBORO
If the analysis set forth in James is controlling, the outcome
of this case is straightforward. Unquestionably, under James,
Roseboro’s three prior South Carolina failure to stop for a
blue light violations are violent felonies. The question we
must address is whether the Supreme Court’s decision in
Begay fundamentally altered the § 924(e)(2)(B)(ii) inquiry
such that the test applied in James does not control the out-
come of this case. To answer this question, we need to turn
to the Supreme Court’s decision in Begay.

In Begay, the Supreme Court addressed whether the offense
of driving under the influence of alcohol (DUI) was a violent
felony under the ACCA. The DUI statute at issue in Begay
was out of the State of New Mexico, which made it a crime
to "‘drive a vehicle within [the] state’ if the driver ‘is under
the influence of intoxicating liquor’ (or has an alcohol con-
centration of .08 or more in his blood or breath within three
hours of having driven the vehicle resulting from ‘alcohol
consumed before or while driving the vehicle’)." 128 S. Ct. at
1584 (quoting N.M. Stat. §§ 66-8-102(A) and (C)). In deter-
mining whether a New Mexico DUI offense was a violent fel-
ony under the ACCA, the Court considered the offense
"generically," id.; that is, the Court applied the categorical
approach by examining the statute "in terms of how the law
defines the offense and not in terms of how an individual
offender might have committed it on a particular occasion."
Id.

In examining the New Mexico DUI statute in the generic
sense, the Court first observed that the offense did not have
as an element the use, attempted use, or threatened use of
physical force against another person under § 924(e)(2)(B)(i).
Id. Critically, the Court assumed that the Tenth Circuit was
correct in concluding that "DUI involves conduct that ‘pres-
ents a serious potential risk of physical injury to another’"
under § 924(e)(2)(B)(ii), noting that DUI is an "extremely
dangerous crime." Id. Nevertheless, the Court concluded that
a DUI offense fell outside of § 924(e)(2)(B)(ii)’s otherwise
 UNITED STATES v. ROSEBORO 9
clause because the offense was "simply too unlike the provi-
sion’s listed examples for us to believe that Congress intended
the provision to cover it." Id.

In reaching this conclusion, the Supreme Court observed
that § 924(e)(2)(B)(ii) listed the types of crimes (burglary,
arson, extortion, or crimes involving the use of explosives)
that fell within the statute’s scope. Id. at 1585. According to
the Court, the presence of burglary, arson, extortion, and
crimes involving the use of explosives indicated that the stat-
ute only covered "similar crimes, rather than every crime that
‘presents a serious potential risk of physical injury to
another.’" Id. (quoting § 924(e)(2)(B)(ii)). The Court rea-
soned that, if Congress meant to cover all crimes that posed
a serious potential risk of physical injury to another, it was
"hard to see why it would have needed to include the exam-
ples at all." Id. The Court also reasoned that, if Congress
meant § 924(e)(2)(B)(ii) to include all crimes that pose risk,
it would not have included § 924(e)(2)(B)(i), because a crime
that has as an element the use, attempted use, or threatened
use of physical force against another person is likely to create
a serious potential risk of physical injury to another. Id.

The Court in Begay also rejected the notion that Congress
included the examples in § 924(e)(2)(B)(ii) for quantitative
purposes, e.g., intending them to "demonstrate no more than
the degree of risk sufficient to bring a crime within
[§ 924(e)(2)(B)(ii)’s] scope." Id. The Court reasoned that, if
Congress intended to focus solely on the degree of risk
involved, it would have "chosen examples that better illus-
trated the ‘degree of risk’ it had in mind." Id.

In light of these considerations, and to give effect to every
clause and word in § 924(e)(2)(B)(ii), the Court concluded
that the examples in § 924(e)(2)(B)(ii) should be read as limit-
ing the crimes that the statute covers to crimes that are
roughly similar, in kind as well as in degree of risk posed, to
the examples themselves. Id. The Court also observed that its
10 UNITED STATES v. ROSEBORO
reading of the statute was supported by § 924(e)(2)(B)(ii)’s
legislative history. Id. at 1585-86.

Turning to the question of whether a New Mexico DUI
offense was similar in kind as well as in degree of risk posed
to the listed examples in § 924(e)(2)(B)(ii), the Court first
observed that a New Mexico DUI offense was different from
the enumerated crimes in § 924(e)(2)(B)(ii) in one critical
respect. Id. at 1586. The enumerated crimes in
§ 924(e)(2)(B)(ii) "all typically involve[d] purposeful, violent,
and aggressive conduct." Id. (citation and internal quotation
marks omitted). According to the Court, the enumerated
crimes, which are all committed with purpose, violence, and
aggression, made it more likely that the defendant would use
a firearm during the commission of a later offense. Id.

In contrast to the enumerated crimes in § 924(e)(2)(B)(ii),
the Court observed that a DUI offense typically did not
involve purposeful, violent, and aggressive conduct. Id.
Rather, the Court observed that a DUI offense was more com-
parable to a strict liability crime, because to prove a DUI
offense, the prosecution need not prove any criminal intent at
all. Id. at 1586-87. In other words, while a drunk driver may
consume alcohol on purpose and perhaps later drive under the
influence of that alcohol on purpose, the prosecution is not
required to prove that the defendant committed the crime pur-
posefully or deliberately because the offense can be commit-
ted accidentally or negligently. Id. at 1587.

The fact that a DUI offense can be committed accidentally
or negligently played a critical role in the Court’s decision.
The Court observed that the ACCA focused on "the special
danger created when a particular type of offender—a violent
criminal or drug trafficker—possesses a gun." Id. Which
defendants are violent depends on their prior crimes. The
more serious the prior crime, the greater the threat the defen-
dant poses when he later possesses a firearm. Id. As the Court
observed:
 UNITED STATES v. ROSEBORO 11
In this respect—namely a prior crime’s relevance to
the possibility of future danger with a gun—crimes
involving intentional or purposeful conduct (as in
burglary and arson) are different than DUI, a strict
liability crime. In both instances, the offender’s prior
crimes reveal a degree of callousness toward risk,
but in the former instance they also show an
increased likelihood that the offender is the kind of
person who might deliberately point the gun and pull
the trigger.

Id.

Thus, the line drawn in the sand by the Court in Begay was
that prior crimes that involved purposeful, violent, and
aggressive conduct increased the likelihood that a defendant
would use a gun during the commission of the later offense,
while a prior crime that did not involve purposeful, violent,
and aggressive conduct did not increase such a likelihood. To
view the matter any differently, the Court observed, would
bring a host of crimes into § 924(e)(2)(B)(ii)’s rubric that
"though dangerous, are not typically committed by those
whom one normally labels ‘armed career criminals.’" Id. (cit-
ing Ark. Code Ann. § 8-4-103(a)(2)(A)(ii) (which applies to
reckless polluters); 33 U.S.C. § 1319(c)(1) (which applies to
individuals who negligently introduce pollutants into the
sewer system); 18 U.S.C. § 1365(a) (which applies to individ-
uals who recklessly tamper with consumer products); and 18
U.S.C. § 1115 (which applies to seamen whose inattention to
duty causes serious accidents)).

In making this distinction between offenses that are pur-
poseful, violent, and aggressive on the one hand, and offenses
that do not involve one of these attributes on the other hand,
the Court recognized that a defendant with a history of DUI
may later pull a firearm’s trigger. Id. at 1588. Indeed, the
defendant in Begay, in committing his § 922(g)(1) offense,
pointed a rifle at his sister and pulled the trigger several times,
12 UNITED STATES v. ROSEBORO
but the rifle would not fire. United States v. Begay, 470 F.3d
964, 965 (10th Cir. 2006). However, this fact was not enough
to sway the Court from holding that

for purposes of the particular statutory provision
before us, a prior record of DUI, a strict liability
crime, differs from a prior record of violent and
aggressive crimes committed intentionally such as
arson, burglary, extortion, or crimes involving the
use of explosives. The latter are associated with a
likelihood of future violent, aggressive, and purpose-
ful "armed career criminal" behavior in a way that
the former are not.

Begay, 128 S. Ct. at 1588.

B

The Supreme Court’s test applied in Begay is markedly dif-
ferent than the test we applied in James. Under James, an
offense presented a serious potential risk of physical injury to
another if the offense conduct had the potential for serious
physical injury to another. 337 F.3d at 390. The Supreme
Court in Begay, however, explicitly rejected this inquiry as
outcome determinative, observing that the proper inquiry
involved far more than an analysis of the risk associated with
the prior crime. Begay, 128 S. Ct. at 1584 (where the Court
assumed that the Tenth Circuit was correct in concluding that
"DUI involves conduct that ‘presents a serious potential risk
of physical injury to another’"); id. at 1587 ("The dissent’s
approach, on the other hand, would likely include these
crimes within the statutory definition of ‘violent felony,’
along with any other crime that can be said to present ‘a seri-
ous potential risk of physical injury.’ . . . . And it would do
so because it believes such a result is compelled by the stat-
ute’s text. . . . But the dissent’s explanation does not account
for a key feature of that text—namely, the four example
crimes intended to illustrate what kind of ‘violent felony’ the
 UNITED STATES v. ROSEBORO 13
statute covers."); id. at 1589 (Scalia, J., dissenting) ("There is
simply no basis (other than the necessity of resolving the pres-
ent case) for holding that the enumerated and unenumerated
crimes must be similar in respects other than the degree of
risk that they pose."). Rather, the proper inquiry focuses on
the similarity between the prior crime and the enumerated
crimes in § 924(e)(2)(B)(ii), asking whether the prior crime
involved purposeful, violent, and aggressive conduct, which
would demonstrate a likelihood that the defendant would use
a firearm during the commission of a crime. Id. at 1585-88.
In James, we neither compared the similarity between a South
Carolina failure to stop for a blue light violation to the enu-
merated crimes in § 924(e)(2)(B)(ii), nor asked whether the
South Carolina statute at issue involved purposeful, violent,
and aggressive conduct. Because we are now bound to apply
the Begay framework, the test we espoused in James is no
longer controlling. See Scotts Co. v. United Indus. Corp., 315
F.3d 264, 271 n.2 (4th Cir. 2002) ("[A] panel of this court
cannot overrule, explicitly or implicitly, the precedent set by
a prior panel of this court. Only the Supreme Court or this
court sitting en banc can do that.") (citation and internal quo-
tation marks omitted).

C

In assessing whether a South Carolina failure to stop for a
blue light violation constitutes a violent felony under
§ 924(e)(2)(B)(ii), per Begay, we must first determine
whether the statute at issue involves purposeful, violent, and
aggressive conduct, such that the offense can be found similar
to the enumerated crimes in § 924(e)(2)(B)(ii). South Carolina
Code § 56-5-750(A) provides:

In the absence of mitigating circumstances, it is
unlawful for a motor vehicle driver, while driving on
a road, street, or highway of the State, to fail to stop
when signaled by a law enforcement vehicle by
means of a siren or flashing light. An attempt to
14 UNITED STATES v. ROSEBORO
increase the speed of a vehicle or in other manner
avoid the pursuing law enforcement vehicle when
signaled by a siren or flashing light is prima facie
evidence of a violation of this section. Failure to see
the flashing light or hear the siren does not excuse a
failure to stop when the distance between the vehi-
cles and other road conditions are such that it would
be reasonable for a driver to hear or see the signals
from the law enforcement vehicle.

S.C. Code Ann. § 56-5-750(A).

The South Carolina Supreme Court, and for that matter this
court in James, has indicated that, in a § 56-5-750(A) prose-
cution, the State must prove the following elements: "(1) that
the defendant was driving a motor vehicle; (2) that he was
driving it on a road, street or highway of this State; (3) that
he was signaled to stop by a law-enforcement vehicle by
means of a siren or flashing light; and (4) that he did not
stop." State v. Hoffman, 186 S.E.2d 421, 425 (S.C. 1972); see
also James, 337 F.3d at 390. These four elements appear to
be routinely used in § 56-5-750(A) prosecutions in South Car-
olina state courts. See Judge Ralph King Anderson, Jr., South
Carolina Request For Charge—Criminal, § 2-60 (2007).

In order for the State to satisfy the first two of these four
elements, the State must show that the defendant was driving
a motor vehicle on a road, street, or highway in South Caro-
lina. The third element requires the State to show that the law
enforcement officer signaled the defendant to stop. The final
element requires the State to prove that the defendant did not
stop after he was signaled by the law enforcement officer to
do so.

From the above elements, it is clear that, to prove a § 56-5-
750(A) violation, the State does not have to prove that the
defendant acted with criminal intent. Indeed, we implicitly
recognized this fact in James, where we observed that "[m]ost
 UNITED STATES v. ROSEBORO 15
cases of failing to stop for a blue light involve the deliberate
choice by the driver to disobey the police officer’s signal."
337 F.3d at 391. It follows from our use of the words "[m]ost
cases" that some South Carolina failure to stop for a blue light
violations involve conduct where the defendant does not make
a deliberate choice to avoid the pursuing law enforcement
officer; rather, he fails to stop on account of some negligent
act.

More telling, the elements as set forth by the South Caro-
lina Supreme Court simply do not require that the defendant
act either willfully or knowingly. The absence of either a will-
ful or knowing requirement strongly suggests that the South
Carolina legislature intended a violation to rest in the event
that the defendant acted either recklessly or negligently. See
State v. Ferguson, 395 S.E.2d 182, 184 (S.C. 1990) (holding
that S.C. Code Ann. § 44-53-370, which provides in relevant
part that it is unlawful for any person to manufacture, distrib-
ute, dispense, or possess with intent to manufacture, distrib-
ute, or dispense, a controlled substance, was not a strict
liability crime; rather, the State was required to prove the
defendant was at least criminally negligent); State v. Jenkins,
294 S.E.2d 44, 45-46 (S.C. 1982) ("By failing to include
‘knowingly’ or other apt words to indicate criminal intent or
motive, we think the legislature intended that one who simply,
without knowledge or intent that his act is criminal, fails to
provide proper care and attention for a child or helpless per-
son of whom he has legal custody, so that the life, health, and
comfort of that child or helpless person is endangered or is
likely to be endangered, violates § 16-3-1030 of the Code.").

To be sure, § 56-5-750(A) unquestionably covers both
intentional and unintentional conduct, as the word "fail,"
unlike the word "refuse," can refer to both intentional and
unintentional acts. For example, a defendant can violate the
statute by intentionally failing to stop. In the event the State
shows that the defendant intentionally failed to stop by
attempting to avoid the law enforcement vehicle by speeding
16 UNITED STATES v. ROSEBORO
up (or in some other manner), the State enjoys the rebuttable
presumption that the defendant violated the statute. See S.C.
Code Ann. § 56-5-750(A) ("An attempt to increase the speed
of a vehicle or in other manner avoid the pursuing law
enforcement vehicle when signaled by a siren or flashing light
is prima facie evidence of a violation of this section."). How-
ever, when the defendant negligently fails to stop, say,
because he was wearing headphones through which he played
music on his Ipod too loudly, the State does not enjoy this
presumption, but the State still is free to prove the defendant
violated the statute, even though the defendant failed to stop
simply because of his own negligent behavior.4

Moreover, § 56-5-750(A) stands in stark contrast to the
South Carolina statute governing resisting arrest, and numer-
ous state statutes governing failing to stop for a blue light.
South Carolina’s resisting arrest statute clearly requires the
defendant to knowingly and willfully resist the arrest. See
S.C. Code Ann. § 16-9-320(A) (defining resisting arrest as
"knowingly and wilfully . . . resist[ing] an arrest"). Laws from
over forty states clearly require that the failure to stop for a
blue light violation be purposeful.5 Section 16-9-320(A) of the
4
The indictments in Roseboro’s three prior § 56-5-750(A) cases suggest
that the state prosecutors were aware that the State could proceed under
either a negligence or intent theory. One indictment alleges that Roseboro
willfully violated § 56-5-750(A), the other two do not.
5
See Ala. Code § 32-5A-193(a) ("Any driver of a motor vehicle who
willfully fails or refuses to bring his vehicle to a stop, or who otherwise
flees or attempts to elude a pursuing police vehicle, when given a visual
or audible signal to bring the vehicle to a stop, shall be guilty of a misde-
meanor."); Alaska Stat. § 28.35.182(b) ("A person commits the offense of
failure to stop at the direction of a peace officer in the second degree if
the person, while driving or operating a vehicle or motor vehicle or while
operating an aircraft or watercraft, knowingly fails to stop as soon as prac-
tical and in a reasonably safe manner under the circumstances when
requested or signaled to do so by a peace officer."); Ariz. Rev. Stat. § 28-
1595(A) ("The operator of a motor vehicle who knowingly fails or refuses
to bring the operator’s motor vehicle to a stop after being given a visual
 UNITED STATES v. ROSEBORO 17

or audible signal or instruction by a peace officer or duly authorized agent
of a traffic enforcement agency is guilty of a class 2 misdemeanor."); Ark.
Code Ann. § 5-54-125(a) ("If a person knows that his or her immediate
arrest or detention is being attempted by a duly authorized law enforce-
ment officer, it is the lawful duty of the person to refrain from fleeing,
either on foot or by means of any vehicle or conveyance."); Cal. Vehicle
Code § 2800.1(a) ("Any person who, while operating a motor vehicle and
with the intent to evade, willfully flees or otherwise attempts to elude a
pursuing peace officer’s motor vehicle, is guilty of a misdemeanor."); Col.
Rev. Stat. § 18-9-116.5(1) ("Any person who, while operating a motor
vehicle, knowingly eludes or attempts to elude a peace officer also operat-
ing a motor vehicle, and who knows or reasonably should know that he
or she is being pursued by said peace officer, and who operates his or her
vehicle in a reckless manner, commits vehicular eluding."); Del. Code
Ann. Title 21 § 4103(b) ("Any driver who, having received a visual or
audible signal from a police officer identifiable by uniform, by motor
vehicle or by a clearly discernible police signal to bring the driver’s vehi-
cle to a stop, operates the vehicle in disregard of the signal or interferes
with or endangers the operation of the police vehicle or who increases
speed or extinguishes the vehicle’s lights and attempts to flee or elude the
police officer shall be guilty of a class G felony."); Fla. Stat. Ann.
§ 316.1935(1) ("It is unlawful for the operator of any vehicle, having
knowledge that he or she has been ordered to stop such vehicle by a duly
authorized law enforcement officer, willfully to refuse or fail to stop the
vehicle in compliance with such order or, having stopped in knowing com-
pliance with such order, willfully to flee in an attempt to elude the officer,
and a person who violates this subsection commits a felony of the third
degree."); Ga. Code Ann. § 40-6-395(a) ("It shall be unlawful for any
driver of a vehicle willfully to fail or refuse to bring his or her vehicle to
a stop or otherwise to flee or attempt to elude a pursuing police vehicle
or police officer when given a visual or an audible signal to bring the vehi-
cle to a stop."); Haw. Rev. Stat. § 710-1027(1) ("A person commits the
offense of resisting an order to stop a motor vehicle if the person inten-
tionally fails to obey a direction of a law enforcement officer, acting under
color of the law enforcement officer’s official authority, to stop the per-
son’s vehicle."); Idaho Code Ann. § 49-1404(1) ("Any driver of a motor
vehicle who wilfully flees or attempts to elude a pursuing police vehicle
when given a visual or audible signal to bring the vehicle to a stop, shall
18 UNITED STATES v. ROSEBORO

be guilty of a misdemeanor."); 625 Ill. Comp. Stat. 5/11-204(a) ("Any
driver or operator of a motor vehicle who, having been given a visual or
audible signal by a peace officer directing such driver or operator to bring
his vehicle to a stop, wilfully fails or refuses to obey such direction,
increases his speed, extinguishes his lights, or otherwise flees or attempts
to elude the officer, is guilty of a Class A misdemeanor."); Ind. Code § 35-
44-3-3(b)(1)(A) (criminalizing the use of a vehicle to knowingly or inten-
tionally flee from a law enforcement officer after the officer has, by visi-
ble or audible means, including operation of the law enforcement officer’s
siren or emergency lights, identified himself or herself and ordered the
person to stop); Iowa Code Ann. § 321.279(1) ("The driver of a motor
vehicle commits a serious misdemeanor if the driver willfully fails to
bring the motor vehicle to a stop or otherwise eludes or attempts to elude
a marked official law enforcement vehicle driven by a uniformed peace
officer after being given a visual and audible signal to stop."); Kan. Stat.
Ann § 8-1568(a) ("Any driver of a motor vehicle who willfully fails or
refuses to bring such driver’s vehicle to a stop, or who otherwise flees or
attempts to elude a pursuing police vehicle or police bicycle, when given
visual or audible signal to bring the vehicle to a stop, shall be guilty as
provided by subsection (c)(1), (2) or (3)."); Ky. Rev. Stat. Ann.
§ 520.095(1)(a) ("When, while operating a motor vehicle with intent to
elude or flee, the person knowingly or wantonly disobeys a direction to
stop his or her motor vehicle."); La. Rev. Stat. Ann. § 14:108.1(A) ("No
driver of a motor vehicle shall intentionally refuse to bring a vehicle to a
stop knowing that he has been given a visual and audible signal to stop
by a police officer when the officer has reasonable grounds to believe that
the driver has committed an offense. The signal shall be given by an emer-
gency light and a siren on a vehicle marked as a police vehicle."); Md.
Code Ann. §§ 21-904(c) and (c)(1) ("If a police officer gives a visual or
audible signal to stop and the police officer, whether or not in uniform, is
in a vehicle appropriately marked as an official police vehicle, a driver of
a vehicle may not attempt to elude the police officer by . . . [w]illfully fail-
ing to stop the driver’s vehicle."); Mich. Comp. Laws § 257.602a(1) ("A
driver of a motor vehicle who is given by hand, voice, emergency light,
or siren a visual or audible signal by a police or conservation officer, act-
ing in the lawful performance of his or her duty, directing the driver to
bring his or her motor vehicle to a stop shall not willfully fail to obey that
direction by increasing the speed of the motor vehicle, extinguishing the
lights of the motor vehicle, or otherwise attempting to flee or elude the
officer."); Minn Stat. § 609.487(1) (defining "flee[ing]" as "increas[ing]
 UNITED STATES v. ROSEBORO 19

speed, extinguish[ing] motor vehicle headlights or taillights, refus[ing] to
stop the vehicle, or us[ing] 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"); Miss. Code Ann. § 97-9-72(1) ("The driver of a
motor vehicle who is given a visible or audible signal by a law enforce-
ment officer by hand, voice, emergency light or siren directing the driver
to bring his motor vehicle to a stop when such signal is given by a law
enforcement officer acting in the lawful performance of duty who has a
reasonable suspicion to believe that the driver in question has committed
a crime, and who willfully fails to obey such direction shall be guilty of
a misdemeanor, and upon conviction shall be punished by a fine not to
exceed One Thousand Dollars ($1,000.00) or imprisoned in the county jail
for a term not to exceed six (6) months, or both."); Mo. Rev. Stat. § 43.170
("It shall be the duty of the operator or driver of any vehicle or the rider
of any animal traveling on the highways of this state to stop on signal of
any member of the patrol and to obey any other reasonable signal or direc-
tion of such member of the patrol given in directing the movement of traf-
fic on the highways. Any person who willfully fails or refuses to obey
such signals or directions or who willfully resists or opposes a member of
the patrol in the proper discharge of his duties shall be guilty of a misde-
meanor and on conviction thereof shall be punished as provided by law for
such offenses."); Mont. Code Ann. § 61-8-316(a) ("A person operating a
motor vehicle commits the offense of fleeing from or eluding a peace offi-
cer if a uniformed peace officer operating a police vehicle in the lawful
performance of the peace officer’s duty gives the person a visual or audi-
ble signal by hand, voice, emergency light, or siren directing the person
to stop the motor vehicle and the person knowingly fails to obey the signal
by increasing the speed of the motor vehicle, continuing at a speed that is
10 or more miles an hour above the applicable speed limit, extinguishing
the motor vehicle’s lights, or otherwise fleeing from, eluding, or attempt-
ing to flee from or elude the peace officer."); Nev. Rev. Stat. § 484.348(1)
("[T]he driver of a motor vehicle who willfully fails or refuses to bring his
vehicle to a stop, or who otherwise flees or attempts to elude a peace offi-
cer in a readily identifiable vehicle of any police department or regulatory
agency, when given a signal to bring his vehicle to a stop is guilty of a
misdemeanor."); N.H. Rev. Stat. Ann. §§ 265:4(I) and (I)(c) ("No person,
while driving or in charge of a vehicle, shall . . . [p]urposely neglect to
stop when signaled to stop by any law enforcement officer . . . or other-
wise willfully attempt to elude pursuit by a law enforcement officer by
increasing speed, extinguishing headlamps while still in motion or aban-
doning a vehicle while being pursued."); N.J. Stat. Ann. § 2C:29-2(b)
("Any person, while operating a motor vehicle . . . who knowingly flees
20 UNITED STATES v. ROSEBORO

or attempts to elude any police or law enforcement officer after having
received any signal from such officer to bring the vehicle . . . to a full stop
commits a crime of the third degree."); N.M. Stat. § 30-22-1(c) (stating
that the crime of resisting, evading, or obstructing an officer consists,
among other things, of "willfully refusing to bring a vehicle to a stop when
given a visual or audible signal to stop"); N.Y. Penal Law § 270.25 ("A
person is guilty of unlawful fleeing a police officer in a motor vehicle in
the third degree when, knowing that he or she has been directed to stop
his or her motor vehicle by a uniformed police officer or a marked police
vehicle by the activation of either the lights or the lights and siren of such
vehicle, he or she thereafter attempts to flee such officer or such vehicle
by driving at speeds which equal or exceed twenty-five miles per hour
above the speed limit or engaging in reckless driving."); N.C. Gen. Stat.
§ 20-141.5(a) ("It shall be unlawful for any person to operate a motor
vehicle on a street, highway, or public vehicular area while fleeing or
attempting to elude a law enforcement officer who is in the lawful perfor-
mance of his duties."); N.D. Cent. Code § 39-10-71(1) ("Any driver of a
motor vehicle who willfully fails or refuses to bring the vehicle to a stop,
or who otherwise flees or attempts to elude, in any manner, a pursuing
police vehicle or peace officer, when given a visual or audible signal to
bring the vehicle to a stop, is guilty of a class A misdemeanor for a first
offense and a class C felony for a subsequent offense within three years.");
Ohio Rev. Code Ann. § 2921.331(B) ("No person shall operate a motor
vehicle so as willfully to elude or flee a police officer after receiving a vis-
ible or audible signal from a police officer to bring the person’s motor
vehicle to a stop."); Ok. Stat. Ann. § 540A(A) ("Any operator of a motor
vehicle who has received a visual and audible signal, a red light and a
siren from a peace officer driving a motor vehicle showing the same to be
an official police, sheriff, highway patrol or state game ranger vehicle
directing the operator to bring the vehicle to a stop and who willfully
increases the speed or extinguishes the lights of the vehicle in an attempt
to elude such peace officer, or willfully attempts in any other manner to
elude the peace officer, or who does elude such peace officer, is guilty of
a misdemeanor."); Or. Rev. Stat. § 811.540 (requiring the state to prove
that the defendant knowingly fled or attempted to flee a pursuing police
officer); 30 Pa. Stat. Ann. § 906(a) ("A person who has been given a
visual or audible signal to stop by a person authorized to enforce this title
and who willfully fails or refuses to bring his vehicle or boat to a stop or
who otherwise flees or attempts to elude a pursuing officer or enforcement
vehicle or boat commits a summary offense of the first degree."); R.I.
Gen. Laws § 31-27-4 (requiring the state to prove that the defendant oper-
 UNITED STATES v. ROSEBORO 21
South Carolina Code and the vast majority of failure to stop
for blue light laws from across the Nation strongly suggest

ated a vehicle in an "attempt to elude or flee from a traffic officer or police
vehicle"); S.D. Codified Laws § 32-33-18 ("Any driver of a vehicle who
intentionally fails or refuses to bring a vehicle to a stop, when given visual
or audible signal to bring the vehicle to a stop, is guilty of failure to stop
at the signal of a law enforcement officer."); Tenn. Code Ann. § 39-16-
603(b)(1) ("It is unlawful for any person, while operating a motor vehicle
on any street, road, alley or highway in this state, to intentionally flee or
attempt to elude any law enforcement officer, after having received any
signal from such officer to bring the vehicle to a stop."); Tex. Transporta-
tion Code § 545.421(a) ("A person commits an offense if the person oper-
ates a motor vehicle and wilfully fails or refuses to bring the vehicle to a
stop or flees, or attempts to elude, a pursuing police vehicle when given
a visual or audible signal to bring the vehicle to a stop."); Va. Code Ann.
§ 46.2-817(A) ("Any person who, having received a visible or audible sig-
nal from any law-enforcement officer to bring his motor vehicle to a stop,
drive such motor vehicle in a willful and wanton disregard of such signal
or who attempts to escape or elude such law-enforcement officer, is guilty
of a Class 2 misdemeanor."); Wash. Rev. Code § 46.61.024(1) ("Any
driver of a motor vehicle who willfully fails or refuses to immediately
bring his vehicle to a stop and who drives his vehicle in a reckless manner
while attempting to elude a pursuing police vehicle, after being given a
visual or audible signal to bring the vehicle to a stop, shall be guilty of a
class C felony."); W. Va. Code § 61-5-17(e) ("Any person who intention-
ally flees or attempts to flee in a vehicle from any law-enforcement offi-
cer, probation officer or parole officer acting in his or her official capacity,
after the officer has given a clear visual or audible signal directing the per-
son to stop, is guilty of a misdemeanor."); Wis. Stat. § 346.04(3) ("No
operator of a vehicle, after having received a visual or audible signal from
a traffic officer, or marked police vehicle, shall knowingly flee or attempt
to elude any traffic officer by willful or wanton disregard of such signal
so as to interfere with or endanger the operation of the police vehicle, or
the traffic officer or other vehicles or pedestrians, nor shall the operator
increase the speed of the operator’s vehicle or extinguish the lights of the
vehicle in an attempt to elude or flee."); Wyo. Stat. Ann. § 31-5-225(a)
("Any driver of a motor vehicle who willfully fails or refuses to bring his
vehicle to a stop, or who otherwise flees or attempts to elude a pursuing
police vehicle, when given visual or audible signal to bring the vehicle to
a stop, is guilty of a misdemeanor.").
22 UNITED STATES v. ROSEBORO
that the South Carolina legislature easily could have required
a § 56-5-750(A) violation to be premised only upon a show-
ing that the defendant acted purposefully, but chose not to do
so.

Like South Carolina, other states permit a failure to stop for
a blue light violation to rest on proof that the defendant acted
negligently. See, e.g., Mass. Gen. Laws Chapter 90 § 25
("Any person who, while operating or in charge of a motor
vehicle, . . . shall refuse or neglect to stop when signaled to
stop by any police officer who is in uniform or who displays
his badge conspicuously on the outside of his outer coat or
garment, . . . shall be punished by a fine of one hundred dol-
lars."); Vt. Stat. Ann. Title 23 § 1133(a) ("No operator of a
motor vehicle shall fail to bring his or her vehicle to a stop
when signaled to do so by an enforcement officer.").

In State v. Roy, 557 A.2d 884 (Vt. 1989), the Vermont
Supreme Court dealt with a similar statute to the one before
this court. Under Vermont law, a person is prohibited from
failing to stop a motor vehicle when signaled to do so by a
law enforcement officer. Id. at 889. The defendant argued that
the State of Vermont was required to prove that he had
knowledge that he was being signaled to stop by a law
enforcement officer displaying a flashing light and sounding
a siren. Id. The Roy court rejected this contention, concluding
that Vermont’s failure to stop for a blue light statute was a
strict liability crime. Id. at 890. In so holding, the Roy court
principally relied on the Vermont legislature’s failure to
include an intent element in the statutory definition. Id. at
889-90.

Although the government openly conceded in its brief that
§ 56-5-750(A) was a "strict liability-like" statute, Appellee’s
Br. at 22, in other submissions to this court, it suggested that
the phrase "[i]n the absence of mitigating circumstances" in
§ 56-5-750(A) indicates that the South Carolina legislature
intended § 56-5-750(A) to cover only knowing and willful
 UNITED STATES v. ROSEBORO 23
acts. The problem for the government’s position is the phrase
"[i]n the absence of mitigating circumstances" allows for a
defense to both intentional and unintentional (negligent) con-
duct. For example, if a defendant intentionally avoids stop-
ping once signaled to do so, a mitigating circumstance may be
his reasonable belief that he was being pursued by somebody
other than a law enforcement officer. Cf. Va. Code Ann.
§ 46.2-817(A) ("It shall be an affirmative defense . . . if the
defendant shows he reasonably believed he was being pursued
by a person other than a law-enforcement officer."); see also
South Carolina Department of Public Safety, General High-
way Safety, Advice For Driving on South Carolina Roads,
available at http://www.schp.org/general_hwy_tips.pdf ("How
to verify that you’re being pulled over by a law enforcement
officer: Look for a flashing blue light and try to identify the
driver and ascertain that he/she is wearing a uniform. Make
sure that the vehicle is marked properly identifying it as a
police vehicle. If it is not, the officer should turn on his inte-
rior light and make it known to you that he is a police officer.
Pull over to the right side of the road when you feel it is safe
to do so."). At the same time, our Ipod defendant would be
free to assert as a mitigating circumstance that the road condi-
tions were such that a reasonable driver would not have heard
the law enforcement officer’s siren or seen his blue lights,
notwithstanding his negligent conduct. See S.C. Code Ann.
§ 56-5-750(A) ("Failure to see the flashing light or hear the
siren does not excuse a failure to stop when the distance
between the vehicles and other road conditions are such that
it would be reasonable for a driver to hear or see the signals
from the law enforcement vehicle."). We can think of other
examples where the presence of a mitigating circumstance
might excuse the defendant’s intentional and unintentional
conduct. But such further examples would only belabor the
point. We are dealing with what essentially is a categorically
overbroad statute, allowing conviction for both intentional
and unintentional conduct. Because it is not clear from the
record whether Roseboro’s § 56-5-750(A)’s convictions
involve intentional or unintentional conduct, a remand is
24 UNITED STATES v. ROSEBORO
appropriate to allow for the district court to consult such addi-
tional materials as may be appropriate under Taylor and Shep-
ard and determine from those materials whether these
convictions involved intentional violations of § 56-5-750(A).
See United States v. Williams, 537 F.3d 969, (8th Cir. 2008)
(vacating, post-Begay, defendant’s auto theft conviction and
remanding to allow district court to consider permissible
materials to determine whether the defendant’s conviction
was a crime of violence). In the event the consultation of
these additional materials establishes that Roseboro’s convic-
tions involved intentional violations of § 56-5-750(A), the
district court would be free to conclude that the convictions
are violent felonies under § 924(e)(2)(B)(ii). The intentional
act of disobeying a law enforcement officer by refusing to
stop for his blue light signal, without justification, is inher-
ently an aggressive and violent act, see United States v.
Spells, 537 F.3d 743, 752 (7th Cir. 2008) (holding, post-
Begay, knowingly and intentionally fleeing (with the use of a
vehicle) from a law enforcement officer is a purposeful,
aggressive, and violent act), and, therefore, a violent felony
under the ACCA.6
6
Relying on James v. United States, 127 S. Ct. 1586 (2007), the govern-
ment also contends that, because in most cases a § 56-5-750(A) violation
involves intentional conduct instead of negligent conduct, a premise we
are willing to accept for purposes of this argument, any violation of that
statute is deemed a purposeful violation. In James, the Supreme Court
addressed whether the Florida offense of attempted burglary otherwise
involved conduct that presented a serious potential risk of physical injury
to another under § 924(e)(2)(B)(ii). The first step in the Court’s analysis
was to define the predicate crime. This step was critical because Florida’s
attempt statute only required the defendant to take an act toward the com-
mission of the crime, which the Court recognized could allow for an
attempted burglary conviction to be premised on mere preparatory activity
that posed no real danger of harm to others. Id. at 1594. Because the Flor-
ida Supreme Court had consistently required an overt act directed toward
entering or remaining in a structure in an attempted burglary prosecution,
the Court was able to use that definition, instead of the broader definition
in the attempt statute, and examine whether conduct, in the main, that
formed a violation of that narrow definition presented a serious potential
 UNITED STATES v. ROSEBORO 25
D

We also note that our decision today is consistent with
decisions from our sister circuits. These decisions make clear
that when a statute does not require deliberate or purposeful
conduct, a conviction under such a statute will not be consid-
ered a violent felony under the ACCA or a crime of violence
under the Sentencing Guidelines. For example, in United
States v. Archer, 531 F.3d 1347 (11th Cir. 2008), the district
court sentenced the defendant as a Career Offender based, in
part, on his prior Florida conviction for carrying a concealed
weapon. Id. at 1348. The Eleventh Circuit affirmed, but the
Supreme Court vacated the defendant’s sentence and
remanded the case for further consideration in light of Begay.
Id. On remand from the Supreme Court, the Archer court held
that the defendant’s Florida conviction for carrying a con-
cealed weapon was not a crime of violence and, therefore, the
defendant was not a Career Offender under the Sentencing
Guidelines. Id. at 1349-52.

risk of physical injury to another. Id. at 1594-97. In this case, unlike
James, we do not have a limiting definition from the state’s highest court
ruling out the application of the statute in an overly broad manner. The
South Carolina Supreme Court has not indicated that the State must
always prove intent in a § 56-5-750(A) prosecution. Because, at its core,
§ 56-5-750(A) allows for a conviction based on negligent conduct, the cat-
egorical approach demands that we ask whether negligent conduct, in the
main, that violates § 56-5-750(A) presents a serious potential risk of phys-
ical injury to another. The correct inquiry simply does not turn, as the gov-
ernment would have it, on whether more violations of § 56-5-750(A) are
of the intentional genre. If this were the case, it would not have been nec-
essary for the Court in James to look to the narrow construction of
attempted burglary, because, in the main, most attempted burglaries
involve much more than mere preparatory conduct. Moreover, the govern-
ment’s position creates serious tension with Begay, because it is highly
unlikely that the Supreme Court would countenance the application of the
ACCA to a case where the charging documents, plea colloquy, and/or jury
instructions made it clear that the defendant acted negligently.
26 UNITED STATES v. ROSEBORO
In applying Begay, the Archer court assessed whether car-
rying a concealed firearm is similar in kind and degree to the
crimes of burglary of a dwelling, arson, extortion, and crimes
involving the use of explosives. Id. at 1350. The court noted
that the Florida statute at issue prohibited a person from carry-
ing a concealed firearm on or about his person. Id. In so not-
ing, the court concluded that carrying a concealed weapon did
not involve the aggressive and violent conduct that the
Supreme Court noted was inherent in the crimes of burglary
of a dwelling, arson, extortion, and crimes involving the use
of explosives. Id. at 1351. The Archer court observed that
"[b]urglary of a dwelling, arson, extortion, and the use of
explosives are all aggressive, violent acts aimed at other per-
sons or property where persons might be located and thereby
injured." Id. In contrast, the court observed that "[c]arrying a
concealed weapon, however, is a passive crime centering
around possession, rather than around any overt action." Id.

With regard to whether the Florida crime at issue involved
purposeful conduct, the Archer court observed that carrying a
concealed weapon under Florida law did not necessarily
involve purposeful conduct. Id. Rather, the court noted that
specific intent was not an element of the crime. Id. This lack
of specific intent made carrying a concealed weapon more
similar to the DUI in Begay. Id. Finally, the court noted that
its conclusion was supported by the fact that carrying a con-
cealed weapon was not universally considered violent by
other states, id., and the fact that the commentary to the Sen-
tencing Guidelines specified that a crime of violence did not
include the unlawful possession of a firearm by a convicted
felon. Id. at 1352.

In United States v. Herrick, No. 07-1553, 2008 WL
4603551, at *1 (1st Cir. October 17, 2008), the First Circuit
addressed the question of whether a violation of Wisconsin’s
motor vehicle homicide statute, which required a determina-
tion that the accused was criminally negligent, constituted a
crime of violence under USSG § 4B1.2. After applying the
 UNITED STATES v. ROSEBORO 27
Begay framework, the court concluded that Wisconsin’s
vehicular homicide statute was not a crime of violence under
USSG § 4B1.2, even though the statute at issue required that
the defendant should realize his conduct creates a substantial
and unreasonable risk of death or great bodily harm to
another. Id. at *6. The court reasoned that, although the crime
of vehicular homicide was violent, it was neither purposeful
nor aggressive. Id.

In United States v. Gray, 535 F.3d 128 (2d Cir. 2008), the
court addressed whether the New York crime of reckless
endangerment in the first degree constituted a crime of vio-
lence under USSG § 4B1.2. Id. at 131-32. The court con-
cluded that the statute, which provided that a defendant was
guilty of reckless endangerment in the first degree when,
under circumstances evincing a depraved indifference to
human life, the defendant recklessly engaged in conduct
which created a grave risk of death to another person, did not
so constitute a crime of violence, reasoning that "[r]eckless
endangerment on its face does not criminalize purposeful or
deliberate conduct." Id. at 132.

When the violent and aggressive offense involves purpose-
ful or deliberate conduct, the offense will be found by our sis-
ter circuits to be a violent felony or a crime of violence. For
example, in United States v. Williams, 529 F.3d 1 (1st Cir.
2008), the court addressed whether, post-Begay, the crime of
transporting a minor for prostitution was a crime of violence
under USSG § 4B1.2. In holding that the crime at issue was
a crime of violence, the court noted that the crime of trans-
porting a minor for prostitution involves purposeful conduct
where the defendant is aware of the risks that the prostituted
minor will face. Id. at 7. The court also observed that the
defendant "may well use force to ensure the minor’s compli-
ance; but it is even more likely, and fully foreseeable, that the
‘clients’ will endanger the minor’s safety in various ways." Id.
The court concluded that the crime of transporting a minor for
prostitution fell "readily . . . within . . . the Court’s trio of
28 UNITED STATES v. ROSEBORO
adjectives," noting that it was "surpassingly difficult to see
how burglary could be treated as a violent crime yet child
trafficking exempted." Id.

In Spells, the defendant challenged his designation as an
Armed Career Criminal under § 924(e), arguing that his prior
conviction in Indiana state court for fleeing a law enforcement
officer in a vehicle did not fall within § 924(e)(2)(B)(ii)’s
ambit. 537 F.3d at 747. In applying Begay, the Spells court
rejected the defendant’s argument. Id. at 752-53. In so doing,
the court relied on the fact that the Indiana statute at issue
required the defendant to knowingly and intentionally flee
from a law enforcement officer. Id. at 752. According to the
Spells court, the knowledge and intent component of the Indi-
ana statute "ensur[ed] that the law is only violated when an
individual makes a ‘purposeful’ decision to flee from an offi-
cer." Id. The court further observed that intentionally fleeing
from a law enforcement officer is inherently aggressive. Id.
Finally, the Spells court noted that a person with a prior con-
viction for fleeing from a law enforcement officer in a vehicle
has a greater likelihood of using a firearm if he were to pos-
sess a firearm during the commission of fleeing from a law
enforcement officer in a vehicle offense. Id.

As these cases illustrate, in cases where the § 56-5-750(A)
violation is unintentional, the violation is akin to the viola-
tions in Archer, Herrick, and Gray, which were found not to
be crimes of violence. When the § 56-5-750(A) violation is
intentional and without justification, the violation is analo-
gous to the Spells failure to stop for a blue light violation,
which was found by that court to be a violent felony. Because
it is not clear from the record whether Roseboro’s § 56-5-
750(A)’s convictions involve intentional or unintentional vio-
lations, we are constrained to vacate Roseboro’s sentence and
remand the case to the district court for resentencing.7
7
On appeal, Roseboro also challenges the obstruction of justice
enhancement, USSG § 3C1.1, levied by the district court. We find no
merit to this challenge.
 UNITED STATES v. ROSEBORO 29
III

For the reasons stated herein, the judgment of the district
court is vacated and the case is remanded for resentencing.

VACATED AND REMANDED

NIEMEYER, Circuit Judge, dissenting:

Following Roseboro’s conviction for the illegal possession
of firearms and ammunition, in violation of 18 U.S.C.
§ 922(g)(1), the district court sentenced him as an "armed
career criminal" to 262 months’ imprisonment. To satisfy the
requirement of the Armed Career Criminal Act ("ACCA"), 18
U.S.C. § 924(e), that Roseboro have three previous convic-
tions for "violent felonies," the district court relied on Rose-
boro’s three prior convictions — in 1996, 2001, and 2002—
for failing to stop for a blue light, in violation of South Caro-
lina Code § 56-5-750. To conclude that Roseboro’s convic-
tions were for "violent felonies," the district court relied on
United States v. James, 337 F.3d 387, 390-91 (4th Cir. 2003)
(hereinafter James (4th Cir.)), where we held that a violation
of South Carolina Code § 56-5-750 is a violent felony for pur-
poses of ACCA.

The majority agrees that if James (4th Cir.) has not been
overruled, it controls and requires us to affirm the district
court’s sentence. The majority, however, contends that the
Supreme Court’s recent decision in Begay v. United States,
128 S. Ct. 1581 (2008), overruled James (4th Cir.) and that
when the analysis undertaken in Begay is applied to South
Carolina Code § 56-5-750, one must conclude that a violation
of that law is not a violent felony.

Because I believe that Begay did not overrule our decision
in James (4th Cir.), I respectfully dissent. Begay construed a
New Mexico statute criminalizing driving while under the
influence of alcohol, conduct materially distinguishable from
30 UNITED STATES v. ROSEBORO
that criminalized by South Carolina Code § 56-5-750. More-
over, when the analysis articulated in Begay is applied to the
South Carolina statute, it becomes clear that a violation of the
South Carolina statute is still a violent felony, as we held in
James (4th Cir.).

I

At the outset, it is important to note that the analysis of
whether a previous conviction qualifies as a violent felony for
purposes of ACCA uses the categorical approach, an
approach that we followed in James (4th Cir.) and that the
Supreme Court followed in Begay. Under the categorical
approach, we consider an offense "generically" — i.e. "in
terms of how the law defines the offense and not in terms of
how an individual offender might have committed it on a par-
ticular occasion." Begay, 128 S. Ct. at 1584; see also James
v. United States, 127 S. Ct. 1586, 1596-97 (2007) (hereinafter
James (S. Ct.); Taylor v. United States, 495 U.S. 575, 602
(1990). Amplifying its depreciation, and indeed rejection of
using an analysis of how a statute is violated "on a particular
occasion" to define the offense, the Begay Court applied the
holding in James (S. Ct.) that an offense can be a "violent fel-
ony even if, on some occasions, it can be committed in a way
that poses no serious risk of physical harm." Begay, 128 S. Ct.
at 1584 (citing James, 127 S. Ct. at 1597). The James (S. Ct.)
Court, in holding that attempted burglary is categorically a
violent felony and poses a serious risk of physical injury to
others as required by ACCA, explained that although "[o]ne
could, of course, imagine a situation in which attempted bur-
glary might not pose a realistic risk of confrontation or injury
to anyone[,] . . . ACCA does not require metaphysical cer-
tainty." James, 127 S. Ct. at 1597. The Court rejected the
defendant’s assertion that in order to apply the categorical
approach employed in Taylor, offense conduct in all cases
had to present a risk of physical injury to others. The Court
explained:
 UNITED STATES v. ROSEBORO 31
We do not view [the categorical] approach as requir-
ing that every conceivable factual offense covered
by a statute must necessarily present a serious poten-
tial risk of injury before the offense can be deemed
a violent felony. . . . Rather, the proper inquiry is
whether the conduct encompassed by the elements of
the offense, in the ordinary case, presents a serious
potential risk of injury to another. One can always
hypothesize unusual cases in which even a prototypi-
cally violent crime might not present a genuine risk
of injury . . . .

James, 127 S. Ct. at 1597 (emphasis added and internal cita-
tion omitted).

The categorical approach thus considers a crime as defined
by the language of the governing statute and projects it to the
heartland of factual circumstances criminalized by the statute
— the conduct that violates the elements of the statute in the
ordinary case.

II

I now turn to the question of whether Begay overruled our
decision in James (4th Cir.). The Supreme Court held in
Begay that convictions under New Mexico’s driving under the
influence of alcohol statute (DUI statute) are not violent felo-
nies for purposes of ACCA. See 128 S. Ct. at 1588. The
Begay Court reached this conclusion because violations of
that statute typically do not involve "purposeful, violent, and
aggressive conduct," as is required by ACCA. Id. at 1586-87.

The relevant provision of the ACCA defines a violent fel-
ony as any crime punishable by imprisonment for a term
exceeding one year that

is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that pres-
32 UNITED STATES v. ROSEBORO
ents a serious potential risk of physical injury to
another[.]

18 U.S.C. § 924(e)(2)(B)(ii). The Begay Court reasoned that
because this definition of a violent felony includes illustra-
tions of the kinds of crimes that fall within the definition, the
general catchall provision "otherwise involves conduct that
presents a serious potential risk of physical injury to another"
is limited by the nature of the crimes given as illustrations:
"[T]he statute covers only similar crimes, rather than every
crime that ‘presents a serious potential risk of physical injury
to another.’" Begay, 128 S. Ct. at 1585 (quoting 18 U.S.C.
§ 924(e)(2)(B)(ii)). Summarizing the effect of this construc-
tion, the Court observed that the illustrative crimes in the stat-
utory definition, which limit all predicate crimes falling
within the definition, "typically involve purposeful, violent,
and aggressive conduct." Id. at 1586 (internal quotation marks
and citations omitted).

When the Court considered the New Mexico statute in light
of this interpretation of a "violent felony," it concluded that
"unlike the example crimes [in ACCA], the conduct for which
the drunk driver is convicted (driving under the influence)
need not be purposeful or deliberate." Begay, 128 S. Ct. at
1587. Indeed, the Court observed that New Mexico’s statute
was comparable to statutes imposing strict liability "in respect
to which the offender need not have had any criminal intent
at all." Id. at 1586-87.

The South Carolina statute, which we considered in James
(4th Cir.) and which criminalizes the failure to stop for a blue
light, is materially different from New Mexico’s DUI statute.
Moreover, under the Begay analysis, it is indeed a violent fel-
ony for purposes of ACCA, as we held in James (4th Cir.).
South Carolina’s failure to stop for a blue light statute pro-
vides:

In the absence of mitigating circumstances, it is
unlawful for a motor vehicle driver, while driving on
 UNITED STATES v. ROSEBORO 33
a road, street, or highway of the State, to fail to stop
when signaled by a law enforcement vehicle by
means of a siren or flashing light.

S.C. Code Ann. § 56-5-750(A) (emphasis added). The opera-
tive clause, "to fail to stop when signaled," requires a deliber-
ate disobedience of the signal. "To signal" means "to notify by
a signal" or "to communicate," and "a signal" is the communi-
cation of a message — "something (as a sound, gesture, or
object) that conveys notice or warning." Merriam-Webster’s
Collegiate Dictionary 1159 (11th ed. 2007) (emphasis added).
As elements of the offense, therefore, (1) a blue light signal
must convey notice to a driver and (2) the driver must disobey
the signal by failing to stop. See, e.g., State v. Hoffman, 186
S.E.2d 421, 425 (S.C. 1972). Recognizing this plain meaning
of the statutory language, we held in James (4th Cir.) that vio-
lation of this statute involves a deliberate choice to disobey:

Most cases of failing to stop for a blue light involve
the deliberate choice by the driver to disobey the
police officer’s signal. This disobedience poses the
threat of a direct confrontation between the police
officer and the occupants of the vehicle, which, in
turn, creates a potential for serious physical injury to
the officer, other occupants of the vehicle, and even
bystanders.

James, 337 F.3d at 391 (emphasis added). Our holding in
James (4th Cir.) was a rational interpretation of South Caroli-
na’s statute, and we, as a panel of the court, are not now free
to overrule it. See Scotts Co. v. United Indus. Corp., 315 F.3d
264, 272 n.2 (4th Cir. 2002). More importantly, this specific
interpretation of the South Carolina statute was not overruled
by Begay.

When we apply the Begay analysis to the South Carolina
statute as construed in James (4th Cir.), we must conclude
34 UNITED STATES v. ROSEBORO
that a violation of the South Carolina statute is a violent fel-
ony, as defined by the ACCA.

Under Begay, a predicate crime must involve conduct pre-
senting "a serious potential risk of physical injury to another"
in a manner that is "roughly similar, in kind as well as in
degree," to the risks posed by the examples given. Begay, 128
S. Ct. at 1585. And the examples given typically involve pur-
poseful, violent, and aggressive conduct. Id. at 1586. Thus,
the Court in Begay held that a violation of New Mexico’s
DUI statute is not a violent felony because it is not, in the
ordinary case, violated with criminal intent. Id. at 1586-87.
But the South Carolina statute is materially distinguishable
because it is generally violated by the deliberate choice by the
driver to disobey the police officer’s signal. Although circum-
stances such as those suggested by the majority can be con-
ceived in which the statute is not violated deliberately, "in the
ordinary case," a driver is signaled to stop and fails to do so,
revealing a deliberateness. South Carolina’s statute is unlike
New Mexico’s DUI statute, which, the Supreme Court con-
cluded, did not require criminal intent.

Also important in Begay was the observation that when a
defendant has prior convictions that are for violent felonies as
defined in ACCA, there is an increased likelihood that the
defendant will later pull the trigger of a gun involved in the
violation of 18 U.S.C. § 922(g) (the statute for which the sen-
tence is enhanced under ACCA). As the Begay Court noted:

Crimes committed in such a purposeful, violent, and
aggressive manner are potentially more dangerous
when firearms are involved. And such crimes are
characteristic of the armed career criminal, the epo-
nym of the statute.

Begay, 128 S. Ct. at 1586 (internal quotation marks and cita-
tion omitted). The Court thus concluded that a violation of the
New Mexico DUI statute, which is, in the ordinary case, vio-
 UNITED STATES v. ROSEBORO 35
lated without criminal intent, is not indicative of whether the
violator would be more likely to pull the trigger of a gun. Id.
at 1587. But a violator of the South Carolina failure to stop
for a blue light statute will be confronting police in virtually
every instance, drastically increasing the risks associated with
the crime. Surely, a driver who has three times disobeyed a
police signal to stop, thereby flouting police authority, is more
likely to pull the trigger of a gun when confronted by police.
Cf. James, 127 S. Ct. at 1594-95 (concluding that a burglar,
who might be confronted by police or a passerby, presents a
"risk of violent confrontation" that satisfies the ACCA’s
requirements and noting that "[t]he main risk of burglary [a
listed crime under ACCA] 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"); see also United States v.
Spells, 537 F.3d 743 (7th Cir. 2008). In Spells, the Seventh
Circuit advanced an analysis that is equally persuasive here:

Taking flight calls the officer to give chase, and
aside from any accompanying risk to pedestrians and
other motorists, such flight dares the officer to need-
lessly endanger himself in pursuit. . . . According to
statistics published by the Department of Justice, one
out of every four state and federal inmates convicted
for brandishing or displaying a firearm, had used the
gun in this manner in an effort to get away. An indi-
vidual’s purposeful decision to flee an officer in a
vehicle when told to stop, reflects that if that same
individual were in possession of a firearm and asked
to stop by police, they would have a greater propen-
sity to use that firearm in an effort to evade arrest.
This link between using a vehicle to flee an officer,
and that same individual’s likelihood of using a gun
when fleeing in the future, distinguishes this crime
from those listed by the Court in Begay as being dan-
gerous, but not reflective of someone whom one nor-
mally labels [an] armed career criminal.
36 UNITED STATES v. ROSEBORO
Spells, 537 F.3d at 752-53 (internal quotation marks and cita-
tions omitted).

III

In short, the nature of the conduct criminalized by South
Carolina’s failure to stop for a blue light statute and our hold-
ing in James (4th Cir.) that a violation of that statute involves
"the deliberate choice by the driver to disobey the police offi-
cer’s signal" categorically present the profile of a violent fel-
ony, as demonstrated by the Begay analysis. The district court
was undoubtedly correct in counting Roseboro’s three previ-
ous convictions for violating the statute as predicate offenses
for purposes of ACCA.

Accordingly, I would affirm.