United States v. Rivers

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 09-4336
DEANGELO SYLVESTER RIVERS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, Chief District Judge.
(2:07-cr-00304-DCN-1)

Argued: December 2, 2009

Decided: February 25, 2010

Before WILKINSON, GREGORY, and DUNCAN,
Circuit Judges.

Vacated and remanded by published opinion. Judge Gregory
wrote the opinion, in which Judge Wilkinson and Judge Dun-
can joined.

COUNSEL

ARGUED: Mary Gordon Baker, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Charleston, South Carolina, for
Appellant. Robert Frank Daley, Jr., OFFICE OF THE
2 UNITED STATES v. RIVERS
UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee. ON BRIEF: W. Walter Wilkins, United States
Attorney, Columbia, South Carolina, Eric J. Klumb, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina, for Appellee.

OPINION

GREGORY, Circuit Judge:

The Armed Career Criminal Act ("ACCA") imposes a
fifteen-year mandatory minimum sentence on felons con-
victed of firearm possession where the felon has "three previ-
ous convictions . . . for a violent felony or a serious drug
offense." 18 U.S.C. § 924(e)(1). Today, we again consider
whether a conviction under South Carolina law for failure to
stop for a blue light, S.C. Code Ann. § 56-5-750(A), consti-
tutes a "violent felony" under the ACCA. In United States v.
Roseboro, 551 F.3d 226, 240 (4th Cir. 2009), we held that
only under some circumstances does a failure to stop for a
blue light qualify as a predicate offense under the ACCA.
Based on the Supreme Court’s subsequent decision in Cham-
bers v. United States, __ U.S. __, 129 S. Ct. 687 (2009), we
hold that under no circumstance is a violation of South Caroli-
na’s blue light statute a violent felony under the ACCA.

I.

The facts of this case are not in dispute. On August 13,
2007, petitioner, Deangelo Sylvester Rivers ("Rivers"), pled
guilty to being a felon in possession of a firearm and ammuni-
tion, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and
924(e). In preparation for sentencing, a probation officer filed
a presentence investigation report, concluding that Rivers’
prior convictions for burglary in the third degree, failure to
stop for a blue light, and possession of cocaine with the intent
 UNITED STATES v. RIVERS 3
to distribute qualified him for enhanced sentencing under the
U.S. Sentencing Guidelines Manual ("USSG") § 4B1.4 and
the ACCA.1 Rivers argued that his South Carolina convictions
for burglary in the third degree and failure to stop for a blue
light were not violent felonies for purposes of the ACCA. The
district court upheld the use of both convictions as qualifying
offenses for purposes of ACCA enhancement, sentencing Riv-
ers to 188-months imprisonment and five years supervised
release.

On appeal, this Court upheld the finding that his burglary
conviction was a violent felony, but vacated the district
court’s judgment with respect to the blue light conviction,
having determined "it is unclear from the record in this appeal
whether Rivers’ 2001 conviction for failure to stop for a blue
light involved intentional conduct." United States v. Rivers,
310 F. App’x 618, 620 (4th Cir. 2009). We remanded the case
for further proceedings in accordance with our opinion in
Roseboro to determine whether or not the blue light violation
was intentional. On remand, the district court found it was
intentional and sentenced Rivers to 188-months imprison-
ment. Rivers filed a timely appeal.

II.

In reviewing a lower court’s determination that a defendant
is an armed career criminal as defined by the ACCA, we
review factual findings for clear error and legal conclusions
de novo. United States v. Wardick, 350 F.3d 446, 451 (4th
Cir. 2003) (citing United States v. Brandon, 247 F.3d 186,
188 (4th Cir. 2001)). Because this is the third time in seven
1
"Because the language defining a violent felony in § 924(e) is nearly
identical to and materially indistinguishable from the language defining a
crime of violence in USSG § 4B1.2," this Court relies on "case law inter-
preting both sections when examining whether a prior crime" is a "crime
of violence" or a violent felony under the ACCA. Roseboro, 551 F.3d at
229 n.2 (citing United States v. Johnson, 246 F.3d 330, 333 n.5 (4th Cir.
2001)).
4 UNITED STATES v. RIVERS
years that this Court has considered the question of whether
a violation of South Carolina’s blue light statute constitutes a
violent felony, we review the history of our analysis in light
of further developments in Supreme Court precedent.

Federal law bars previously convicted felons from possess-
ing a firearm. 18 U.S.C. § 922(g)(1). Ordinarily, felons in
possession receive a prison term of up to ten years.
§ 924(a)(2). The ACCA imposes a more stringent fifteen-year
mandatory-minimum term of imprisonment on defendants
who have three prior convictions for "a violent felony or a
serious drug offense." § 924(e)(1). The ACCA defines "vio-
lent felony" as "any crime punishable by imprisonment for a
term exceeding 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 pre-
sents a serious potential risk of physical injury to
another.

§ 924(e)(2)(B). The South Carolina blue light statute reads in
relevant part:

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
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-
 UNITED STATES v. RIVERS 5
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. § 56-5-705(A).

This statute was last addressed by the Court in Roseboro,
where we held that only a conviction predicated on intention-
ally failing to stop when signaled qualifies as a predicate
offense under the ACCA. 551 F.3d at 240. In so holding, we
found the Supreme Court’s decision in Begay v. United
States, __ U.S. __, 128 S. Ct. 1581 (2008) overruled our prior
holding in United States v. James, 337 F.3d 387 (4th Cir.
2003).

In Begay, the Supreme Court held that violating New Mexi-
co’s law proscribing driving under the influence ("DUI") did
not qualify as a predicate offense under the ACCA. 128 S. Ct.
at 1588. To determine whether or not the New Mexico statute
qualified, the Court applied a categorical approach. "In deter-
mining whether this crime is a violent felony, we consider the
offense generically, that is to say, we examine it 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. at 1584. In analyzing the statute categorically,
the Court emphasized that although a "‘DUI involves conduct
that presents a serious potential risk of physical injury to
another’ under § 924(e)(2)(B)(ii) . . . the offense was ‘simply
too unlike the provision’s listed examples for us to believe
that Congress intended the provision to cover it.’" Roseboro,
551 F.3d at 231 (quoting Begay, 128 S. Ct. at 1584 (internal
quotation marks omitted)). The Court went on to hold that the
example crimes enumerated in the ACCA—burglary, arson,
extortion, or crimes involving the use of explosives—should
be read as limiting the types of crimes covered by the statute
to those which are "roughly similar in kind as well as in
degree of risk posed, to the examples themselves." Begay, 128
S. Ct. at 1585 (citations omitted). The enumerated crimes
6 UNITED STATES v. RIVERS
were further characterized to "typically involve purposeful,
‘violent,’ and ‘aggressive’ conduct." Id. at 1586 (citations
omitted).

Applying the distinction drawn in Begay, between the pur-
poseful behavior required by § 924(e)(2)(B)(ii), and the unin-
tentional conduct captured by New Mexico’s DUI statute, the
Roseboro panel turned to South Carolina’s statute. A success-
ful prosecution of the South Carolina blue light statute 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.

Roseboro, 551 F.3d at 233. In finding that the statute did not
have a criminal intent element, the Court applied a modified
categorical approach to establish the intentionality Begay held
was necessary to bring a crime within the ambit of the ACCA.
Id. at 235 ("The absence of either a willful or knowing
requirement strongly suggests that the South Carolina legisla-
ture intended a violation to rest in the event that the defendant
acted either recklessly or negligently." (citations omitted)).

A sentencing court may use the modified categorical
approach when "the statutory provision at issue defines multi-
ple crimes," and may consult additional materials, beyond the
fact of conviction to determine the crime at issue. Id. at 230
(citing Taylor v. United States, 495 U.S. 575, 599 (1990))
(emphasis added). In justifying application of the modified
approach to South Carolina’s statute, the Roseboro panel
observed that it was "categorically overbroad . . . allowing
conviction for both intentional and unintentional conduct." Id.
at 240. The Court then divided the conduct prohibited by the
blue light statute into two categories: intentional and uninten-
tional behavior. In light of this division, the panel held that a
 UNITED STATES v. RIVERS 7
sentencing court, after consulting the appropriate documents2
to identify the type of conduct underlying the conviction,
could apply the ACCA’s enhancement provision to inten-
tional violations of South Carolina’s statute.

III.

We now have the benefit of the Supreme Court’s decision
in Chambers, which was published eight days after Roseboro
was decided. Chambers counsels that the approach taken by
Roseboro is no longer good law as applied to the South Caro-
lina blue light statute.

A.

The Supreme Court made clear in Chambers that courts
must apply the categorical approach to determine whether a
conviction is ACCA eligible. Varying from that approach is
only appropriate where different types of behavior satisfy an
element of the offense and the proscribed behaviors constitute
at least two separate crimes for ACCA purposes. See Cham-
bers, 129 S. Ct. 690.

The question before the Court in Chambers was whether
violation of an Illinois escape statute criminalizing, among
other things, failure to report to a penal institution, qualified
as a violent felony for purposes of the ACCA. As part of its
statutory analysis, the Supreme Court explained that the
generic, categorical approach to assessing whether a particular
crime is eligible under the ACCA is preferred to the more
searching inquiry necessary under the modified categorical
approach. Id. The methodology of Chambers clarifies when a
court may vary from the categorical approach and apply the
analysis supplied by Taylor and Shepard. The modified cate-
2
See Shepard v. United States, 544 U.S. 14, 16-17 (2005) (holding that
police reports and complaint applications could not be consulted in apply-
ing the modified approach).
8 UNITED STATES v. RIVERS
gorical approach was intended "only for ‘a narrow range of
cases,’" Shepard v. United States, 544 U.S. 14, 17 (2005)
(quoting Taylor, 495 U.S. at 602), as it calls for the sentenc-
ing court to look beyond "the fact that the defendant had been
convicted of crimes falling within certain categories," Taylor,
495 U.S. at 600. However in Chambers, the Court observed
that in cases where the "behavior underlying, say, breaking
into a building differs so significantly from the behavior
underlying, say, breaking into a vehicle, that for ACCA pur-
poses a sentencing court must treat the two as different
crimes." 129 S. Ct. at 690 (citing Shepard, 544 U.S. at 16-17).
Thus, only when a statute prohibits different types of behavior
such that it can be construed to enumerate separate crimes can
a court modify the categorical approach to determine ACCA
eligibility.

In its analysis of the Illinois statute, the Court therefore had
to determine "whether for ACCA purposes a failure to report
counts as a separate crime" where the statute criminalizes the
following conduct:

(1) escape from a penal institution, (2) escape from
the custody of an employee of a penal institution, (3)
failing to report to a penal institution, (4) failing to
report for periodic imprisonment, (5) failing to return
from furlough, (6) failing to return from work and
day release, and (7) failing to abide by the terms of
home confinement.

Id. at 691 (citing Ill. Comp. Stat., chp. 720, § 5/31-6(a))
(emphasis added). Because the Illinois statute "places in a sin-
gle numbered statutory section several different kinds of
behavior," it describes "at least two separate crimes, namely
escape from custody on the one hand, and failure to report on
the other." Id.

After finding that the Illinois escape statute did in fact
describe two separate crimes, the Court analyzed the "failure
 UNITED STATES v. RIVERS 9
to report" provisions independent of the provisions criminaliz-
ing escape from custody to determine whether failure to
report is a violent felony under the ACCA. This division was
important because the purpose of the ACCA is to "focus on
the special danger created when a particular type of offend-
er—a violent criminal or drug trafficker—possesses a gun."
Begay, 128 S. Ct. at 1587 (citing Taylor, 495 U.S. at 587-88).
It was clear that the Court analyzed the Illinois statute as
criminalizing "different kinds of behavior," Chambers, 129 S.
Ct. at 691, and found failure to report "does not ‘involve con-
duct that presents a serious potential risk of physical injury to
another,’" id. at 691-92 (quoting Begay, 128 S. Ct. at 1583-
85).

The Court then applied the analysis required by Begay and
observed that failure to report "would seem less likely to
involve a risk of physical harm than the less passive, more
aggressive behavior underlying an escape from custody," and
held that it did not qualify as a predicate offense under the
ACCA. Id. at 691.

Thus, after Chambers, the modified categorical approach
most naturally applies to statutes which proscribe different
types of behavior constituting separate crimes for purposes of
the ACCA.

B.

We now turn to the case at hand to determine whether or
not the Roseboro panel’s application of the modified categori-
cal approach to South Carolina’s blue light statute survives
the Supreme Court’s holding in Chambers. Rivers argues that
the Roseboro panel erred in dividing South Carolina’s blue
light law into separate criminal offenses for the purposes of
enhancement. According to the petitioner, the statute only
contains one category of crime and therefore cannot be ana-
lyzed under the modified categorical approach. We agree.
10 UNITED STATES v. RIVERS
The Roseboro panel did not have the guidance of Cham-
bers to determine whether or not it was appropriate to divide
the South Carolina statute into two categories of conduct
based on intent.3 The panel pointed to Taylor and Shepard in
choosing to employ the modified categorical approach.
Roseboro, 551 F.3d at 229 n.3. Yet neither Taylor nor Shep-
ard provide guidance as to when a statute is susceptible to
being divided into different categories of crimes.4 Chambers,
however, does.

After Chambers, a statute which imposes strict liability for
certain conduct does not describe "several different kinds of
behavior" such that it would constitute a "separate crime" for
purposes of applying the modified categorical approach. See
Chambers, 129 S. Ct. at 691. Here, South Carolina’s statute
proscribes one type of behavior: failing to stop for a blue
light. "Failure to see the flashing light or hear the siren does
not excuse a failure to stop when the distance between the two
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." S.C. Code Ann. § 56-5-750(A). There
is no varied behavior underlying the elements of a blue light
offense. We therefore cannot apply the modified approach to
3
As the panel in Roseboro acknowledged, "[A] panel of this court can-
not 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." Roseboro at 234 (citing Scotts Co. v. United Indus. Corp., 315 F.3d
264, 271 n. 2 (4th Cir. 2002) (citation and internal quotation marks omit-
ted)).
4
Instead, both cases deal with burglary statutes that criminalize a broad
range of intentional conduct, some of which does not impose the same
type of risk contemplated by the ACCA. The Court found in cases where
statutes define burglary more broadly, "e.g. by eliminating the requirement
that the entry be unlawful, or by including places, such as automobiles and
vending machines other than buildings," those types of convictions are not
sufficiently serious for purposes of the ACCA. Taylor, 495 U.S. at 599.
A burglary statute which criminalizes knowing and intentional behavior,
stands in stark contrast to the South Carolina blue light statute, which cov-
ers unintentional acts.
 UNITED STATES v. RIVERS 11
this statute because the statute only contains one category of
crime. As a result, a court may not vary from the categorical
approach in assessing ACCA eligibility. Instead, Chambers
makes clear that we must apply the categorical approach to
South Carolina’s blue light statute.

C.

Because we find that the South Carolina blue light statute
only proscribes one behavior and does not contain separate
categories of crimes, we must now apply the categorical
approach described in Begay to determine whether or not the
South Carolina blue light statute as a whole is a predicate
offense under the ACCA. In doing so, we are mindful of the
Supreme Court’s direction that "it is the generic sense of the
word . . . that counts" in applying the categorical approach
and that we must "refer to a crime as generally committed."
Chambers, 129 S. Ct. at 690; see also Begay, 128 S. Ct. at
1584 ("[W]e examine it 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."). As a result, we
must decide what the South Carolina statute criminalizes.
Much like the New Mexico statute at issue in Begay, the blue
light statute does not contain the requisite intent to bring it
within the scope of crimes that fall under the ACCA. In fact,
the South Carolina statute explicitly criminalizes a broad
swath of unintentional conduct. Roseboro, 551 F.3d at 235.
Because it is "a strict liability crime, [it] differs from a prior
record of violent and aggressive crimes committed intention-
ally such as arson, burglary, extortion, or crimes involving the
use of explosives." Begay, 128 S. Ct. at 1588. Therefore,
South Carolina’s blue light law, when viewed categorically,
falls outside the scope of a "violent felony" as defined by
§ 924(e)(2)(B)(ii).5
5
As the panel in Roseboro noted, "[l]aws from over forty states require
that the failure to stop for a blue light violation be purposeful." Roseboro,
551 F.3d at 236 n.5 (offering a comprehensive look at state laws which
require knowledge for a blue light violation). Because those statutes are
not before us, we express no opinion on whether they qualify as prior
offenses under the ACCA.
12 UNITED STATES v. RIVERS
IV.

In light of the reasoning above, we conclude that a viola-
tion of South Carolina’s blue light statute, S.C. Code Ann.
§ 56-5-750(A), does not qualify as a predicate offense for pur-
poses of the ACCA. We therefore vacate the judgment of the
district court and remand the case for resentencing in light of
this opinion.

VACATED AND REMANDED