FILED
United States Court of Appeals
Tenth Circuit
December 10, 2008
Elisabeth A. Shumaker
PUBLISH Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 06-4284
JEREMIAH WEST,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:05-CR-675-DAK)
Submitted on the briefs: *
James A. Valdez of James A. Valdez, LLC, Salt Lake City, Utah, for
Defendant-Appellant Jeremiah West.
Brett L. Tolman, United States Attorney, and Karin M. Fojtik, Assistant United
States Attorney, Salt Lake City, Utah, for Plaintiff-Appellee United States of
America.
*
After examining the briefs and appellate record, this panel has
determined unanimously to honor the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
Before BRISCOE, EBEL and McCONNELL, Circuit Judges.
EBEL, Circuit Judge.
Defendant-Appellant Jeremiah West received a 235-month sentence for his
conviction for being a previously-convicted felon in possession of a firearm. On
appeal, he challenges that sentence, primarily on two grounds. First, West argues
that the district court erred in concluding that he was subject to a mandatory
minimum fifteen-year sentence under the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e). To resolve this issue, we apply the Supreme Court’s recent
decision in Begay v. United States, 128 S. Ct. 1581 (2008), and affirm the district
court’s determination.
Second, West argues that in calculating his advisory guideline range under
the sentencing guidelines, the district court erred in applying three enhancements
that increased his offense level by twelve. Although the presentence report
(“PSR”) contained facts supporting the application of these three enhancements,
West adequately disputed those facts at sentencing. Thus, the district court was
obligated, under Fed. R. Crim. P. 32(i)(3)(B), either to rule on those disputes or
explain why the disputed facts were not relevant to sentencing West. Because the
court failed to meet its Rule 32(i)(3)(B) fact-finding obligation, we remand for
further proceedings.
2
I. Background
On August 9, 2005, West stopped his car at a gas station in Lehi, Utah.
During the stop, a woman accompanying West told the gas station owner that she
was being kidnapped. The owner called police.
When officers arrived, they used their cars to block West’s vehicle and
prevent him from leaving. As the officers tried to question him, West put his car
into reverse and quickly backed up, hitting the building. West then drove his car
forward and ran into one of the police cars blocking his path. He continued to
alternate driving his car forward and back, repeatedly hitting both the building
and the police vehicles blocking his escape. West also floored the accelerator and
attempted to use his car to shove one of the police cars out of his way. West
continued these efforts to escape until one of the officers drew his weapon and
pointed it at West. Even as officers attempted to restrain him physically, West
continued to resist.
After arresting West, officers found a fully loaded 12-gauge shotgun in the
car, between the driver’s seat and the center console. Officers also found a
baggie of methamphetamine in the car, and a large bag of marijuana hidden
between the car’s coolant reservoir and the engine firewall.
The United States indicted West on four counts: (1) being a previously
convicted felon in possession of a firearm and ammunition, (2) being a person
who is addicted to, and an unlawful user of, controlled substances, who
3
knowingly possesses a firearm and ammunition, (3) possessing marijuana with the
intent to distribute it, and (4) possessing methamphetamine. In exchange for the
Government’s agreement to drop the other three charges, West pled guilty to one
count of being a previously convicted felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). 1 In pleading guilty to this charge, West
admitted, among other things, that he had tried to evade police, he knowingly
possessed the shotgun found in his car, and he had previously been convicted of a
felony.
West faced up to ten years in prison on the felon-in-possession conviction.
See 18 U.S.C. § 924(a)(2). But before he entered his guilty plea, the Government
notified West that it would seek to enhance that sentence under the ACCA. At
sentencing, the district court determined that West qualified as an armed career
criminal under the ACCA, 18 U.S.C. § 924(e). As such, he faced a statutory
1
Section 922(g)(1) makes it
unlawful for any person —
(1) who has been convicted in any court of[] a crime punishable by
imprisonment for a term exceeding one year []
....
to ship or transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.
18 U.S.C. § 922(g)(1).
4
mandatory minimum fifteen-year, or 180-month, sentence. See id. § 924(e)(1). 2
Moreover, the PSR calculated West’s offense level to be 33 and his criminal
history category to be VI, resulting in an advisory guideline imprisonment range
of between 235 and 293 months. The district court imposed a sentence at the
lowest end of that range, 235 months. West appeals, challenging that sentence.
We have jurisdiction to consider this appeal under 18 U.S.C. § 3742 and 28
U.S.C. § 1291.
II. Discussion
A. Whether West qualifies as an armed career offender under the ACCA
West challenges the district court’s conclusion that his prior convictions
make him an armed career offender under the ACCA. A defendant convicted of
violating 18 U.S.C. § 922(g) qualifies as an armed career offender if he “has three
previous convictions by any court referred to in section 922(g)(1) of this title for
a violent felony or a serious drug offense, or both, committed on occasions
2
Section 924(e)(1) provides that,
[i]n the case of a person who violates section 922(g) of this title and has
three previous convictions by any court referred to in section 922(g)(1)
of this title for a violent felony or a serious drug offense, or both,
committed on occasions different from one another, such person shall
be fined under this title and imprisoned not less than fifteen years, and,
notwithstanding any other provision of law, the court shall not suspend
the sentence of, or grant a probationary sentence to, such person with
respect to the conviction under section 922(g).
18 U.S.C. § 924(e).
5
different from one another.” 18 U.S.C. § 924(e)(1); see also James v. United
States, 550 U.S. 192, 127 S. Ct. 1586, 1590-91 (2007). In this case, the district
court determined that West had three qualifying convictions: 1) a 1999 Utah
felony conviction for engaging in a criminal enterprise; 2) a 2000 Utah felony
conviction for burglary of a dwelling; and 3) a 2001 Utah felony conviction for
failing to stop at a police officer’s command. On appeal, West argues that neither
the criminal-enterprise nor the failure-to-stop conviction is sufficient to qualify
him as an armed career criminal.
To the extent that West faults the district court for failing to find the
factual existence of these predicate convictions by a preponderance of the
evidence, we reject that argument. The PSR set forth facts establishing the
existence of these prior convictions, as well as the details underlying them. And
in the district court, West never challenged the PSR on this basis. “Criminal
Procedure Rule 32 requires the defendant to affirmatively point out any fact in the
PSR that he contends is inaccurate. Absent an objection to the PSR, the district
court ‘may accept any undisputed portion of the presentence report as a finding of
fact.’ Fed. R. Crim. P. 32(i)(3)(A).” United States v. Harris, 447 F.3d 1300,
1306 (10th Cir. 2006); see also United States v. Avalos, 506 F.3d 972, 979-80
(10th Cir. 2007) (noting that “a defendant must make a showing that the
information in the PSR is unreliable and articulate the reasons why the facts
contained therein are untrue or inaccurate” (quotation marks, alterations
6
omitted)), petition for cert. filed, (U.S. Mar. 21, 2008) (No. 07-10063). 3 In this
case, West circumvented any need for the Government to present additional
evidence during the sentencing proceeding in support of the factual existence of
these prior convictions by failing to object to the information regarding these
convictions already contained in the PSR. See Chee, 514 F.3d at 1115; United
States v. Overholt, 307 F.3d 1231, 1251-52 (10th Cir. 2002); United States v.
Kay, 961 F.2d 1505, 1507 (10th Cir. 1992).
On appeal, West can still argue that these convictions, as a matter of law,
3
In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held
that “[a]ny fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” Id. at 244. In this Sixth Amendment context, we
have held that a defendant’s failure to object to facts in the PSR does not result in
a waiver of his constitutional right to have sentencing enhancements proved to a
jury beyond a reasonable doubt. See United States v. Bass, 411 F.3d 1198, 1204
n.7 (10th Cir. 2005); see also United States v. Wolfe, 435 F.3d 1289, 1299 (10th
Cir. 2006). But in this case, West makes no Sixth Amendment Booker argument.
And the district court treated the sentencing guidelines as advisory, thus curing
any systemic constitutional defect with sentencing under the federal guidelines.
See Booker, 543 U.S. at 245. In any event, Booker expressly exempts the factual
question here—whether West actually has these prior convictions—from the Sixth
Amendment’s requirement that a jury find any fact that increases a sentence
beyond the maximum authorized by a guilty plea or jury verdict. See id. at 244;
see also James, 127 S. Ct. at 1600 n.8.
Outside the Sixth Amendment Booker context, Fed. R. Crim. P. 32
continues to require a defendant, at or before sentencing, to make specific
objections to facts contained in the PSR. See Harris, 447 F.3d at 1306; Wolfe,
435 F.3d at 1299. If a defendant fails to make such an objection, we will deem
him to have waived any dispute regarding the facts set forth in the PSR. See
Harris, 447 F.3d at 1306; Wolfe, 435 F.3d at 1299; see also United States v. Chee,
514 F.3d 1106, 1114-15 (10th Cir. 2008); Avalos, 506 F.3d at 979-80.
7
fail to qualify him as an armed career criminal. See United States v. Fell, 511
F.3d 1035, 1037 (10th Cir. 2007). In addressing that argument and determining
whether a prior conviction falls under the ACCA, we apply a “categorical
approach,” generally looking “only to the fact of conviction and the statutory
definition of the prior offense, and do not generally consider the particular facts
disclosed by the record of conviction.” James, 127 S. Ct. at 1593-94 (quotation
omitted). “That is, we consider whether the elements of the offense are of the
type that would justify its inclusion” within the ACCA, “without inquiring into
the specific conduct of this particular offender.” Id. at 1594. To satisfy this
categorical approach, it is not necessary “that every conceivable factual offense
covered by a statute” fall within the ACCA. Id. at 1597. “Rather, the proper
inquiry is whether the conduct encompassed by the elements of the offense, in the
ordinary case,” qualifies under the ACCA as a violent felony or a serious drug
offense. Id.; see also Fell, 511 F.3d at 1039-40.
If, in the ordinary case, a criminal statute proscribes conduct broader than
that which would satisfy the ACCA’s definition of a violent felony or serious
drug offense, a federal court may then also look at the charging documents and
documents of conviction to determine whether the defendant in a particular case
was convicted of an offense that falls within the ACCA. See Shepard v. United
States, 544 U.S. 13, 15-18, 20-21 (2005); Taylor v. United States, 495 U.S. 575,
577-78, 598-602 (1990). We have referred to this as a “modified categorical”
8
approach. See United States v. Zuniga-Soto, 527 F.3d 1110, 1119-20 (10th Cir.
2008).
As previously stated, West does not challenge the district court’s
conclusion that his prior burglary conviction qualifies as a violent felony under
the ACCA. But he does dispute that his prior convictions for engaging in a
criminal enterprise and for failing to stop at an officer’s command fall within the
ACCA.
1. West’s Utah felony conviction for a criminal enterprise
The PSR indicated that, in January 1999, West pled guilty to engaging in a
criminal enterprise, a second-degree felony under Utah law. The PSR further
indicated that, according to “[c]ourt documents,” that conviction resulted after
police stopped a car West was driving and found in the car “a jewelry box
containing two empty bags . . . and three one-gram baggies of methamphetamine.”
The “[c]ourt documents” further indicated that West “admitted ownership of the
drugs, and he told the officer that he had been using and selling
methamphetamine.”
In this appeal, West argues that his criminal-enterprise conviction does not
qualify as a serious drug offense. West has waived that argument, however, by
affirmatively conceding in the district court that this conviction was a predicate
offense for ACCA purposes. During a hearing on West’s motion to withdraw his
guilty plea, defense counsel expressly “concede[d]” that both West’s prior
9
convictions for burglary and criminal enterprise “would be predicate offenses for
armed career offender.” Consistent with that concession, West, in his first two
sentencing memoranda filed with the district court, did not object to the PSR
characterization of his Utah criminal-enterprise conviction as a “serious drug
offense” under the ACCA. And in his third sentencing memorandum filed with
the district court, West again conceded that his burglary and criminal-enterprise
convictions are “two convictions that qualify” under 18 U.S.C. § 924(e). 4 In that
memorandum, he instead specifically argued that his two other prior convictions
should not count under the ACCA. Later in the same memorandum, West
asserted again that he has “only three possible predicate offenses for
consideration of sentence as ACCA sentence. Criminal Enterprise, Burglary and
Failure to respond, the latter of which should not be considered.” Finally, even
during the sentencing hearing, defense counsel argued only that West’s Utah
conviction for fleeing police should not be counted as a violent felony for ACCA
purposes.
4
In making this concession, West acknowledged that he “has two
convictions that qualify under those definitions [of ACCA predicate offenses],
Criminal Enterprise which is questionable because of the name of the charge and
Burglary. Both of those carry a sentence of one to fifteen and one year
respectively.” We do not deem West’s reference to his criminal-enterprise
conviction, as being “questionable because of the name of the charge,” to be
sufficient to raise the issue of whether this conviction qualifies as a predicate
offense under the ACCA. Our interpretation is bolstered by the fact that this
phrase, “questionable because of the name of the charge,” is included in a
sentence that otherwise concedes that the criminal-enterprise conviction does
qualify as a predicate offense under the ACCA.
10
In light of these affirmative concessions before the district court, West has
waived his appellate argument that his Utah criminal-enterprise conviction does
not qualify as a serious drug offense under the ACCA.
“Waiver is different from forfeiture. Whereas forfeiture is the failure
to make the timely assertion of a right, waiver is the ‘intentional
relinquishment or abandonment of a known right.’” United States v.
Olano, 507 U.S. 725, 733 . . . (1993). In other words, waiver is
accomplished by intent, but forfeiture comes about through neglect.
Given this distinction, we have held that a party that has forfeited a
right by failing to make a proper objection may obtain relief for plain
error; but a party that has waived a right is not entitled to appellate
relief.
United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007)
(citations, further quotation, alterations omitted); see United States v.
Cordova-Arevalo, 456 F.3d 1229, 1231 n.4 (10th Cir. 2006) (holding that the
defendant conceded that his prior Colorado conviction for third-degree assault
was a violent felony, for purposes of U.S.S.G. § 2L1.2, where defendant never
challenged the PSR’s treatment of that conviction as a violent felony under
§ 2L1.2, but instead affirmatively acknowledged that it met § 2L1.2’s definition
of a felony); cf. United States v. Mancera-Perez, 505 F.3d 1054, 1056-59 (10th
Cir. 2007) (holding that defendant who, at sentencing, did not argue for a lower
sentence and, instead, affirmatively conceded that a sentence at the lowest end of
the advisory guideline range was appropriate, had waived his appellate argument
challenging the substantive reasonableness of that sentence), cert. denied, 128
S. Ct. 1314 (2008).
11
2. West’s Utah conviction for failing to stop at an officer’s
command
Next, West challenges the district court’s determination that his 2001 Utah
conviction for failing to stop at a police officer’s command was a violent felony
for ACCA purposes. Regarding this conviction, the PSR indicates that,
[o]n June 13, 1997, an officer of the American Fork Police Department
observed [West] speeding. The officer attempted to make a traffic stop;
however, [West] accelerated through city streets, running a stop sign,
then spun out of control across a yard and through several mailboxes.
He continued to speed and run stop signs until the officer was finally
able to locate the car. The car’s owner identified [West] as the driver.
[West’s] license was suspended, and several stolen items were located
in the vehicle.
(R. v. VI (PSR) para. 31.) As a result of this incident, West pled guilty, in 2001,
to failing to stop at an officer’s command. He was represented by counsel at the
time.
During the sentencing proceeding that occurred in the federal criminal
prosecution at issue here, the district court, over West’s objection, concluded that
the earlier Utah conviction for failing to stop at an officer’s command qualifies as
a “violent felony” under the ACCA. We review that legal determination de novo.
See Fell, 511 F.3d at 1037.
The ACCA, in pertinent part, defines a violent 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
12
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B).
The parties do not dispute that failing to stop at an officer’s command is an
offense punishable under Utah law for a term of imprisonment exceeding one
year. The Government then asserts that such a conviction falls within the
ACCA’s residual language because it “otherwise involves conduct that presents a
serious potential risk of physical injury to another.” Id. § 924(e)(2)(B)(ii).
Applying the Supreme Court’s decision in Begay v. United States, 128
S. Ct. 1581 (2008), we conclude that, under a categorical approach, a prior
conviction under Utah law for failing to stop at an officer’s command qualifies as
a violent felony under the ACCA’s residual language.
a. Applying Begay
In determining whether a prior conviction qualifies as a violent felony
under the ACCA’s residual provision, Begay requires a two-part inquiry,
considering both (1) whether the offense of conviction “presents a serious
potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii); and
(2) whether the offense is “roughly similar, in kind as well as in degree of risk
posed, to the” offenses specifically enumerated in § 924(e)(2)(B)(ii)—burglary,
arson, extortion, or crimes involving explosives. Begay, 128 S. Ct. at 1585; see
13
United States v. Mayer, 530 F.3d 1099, 1109 (9th Cir. 2008); see also United
States v. Smith, 544 F.3d 781, 783-84 (7th Cir. 2008); United States v. Gray, 535
F.3d 128, 130-31 (2d Cir. 2008) (applying Begay to determine if prior convictions
were crimes of violence for purposes of U.S.S.G. § 4B1.2); United States v.
Archer, 531 F.3d 1347, 1350 (11th Cir. 2008) (same); United States v. Williams,
529 F.3d 1, 2, 5-8 (1st Cir. 2008) (same); United States v. Papakee, 550 F. Supp.
2d 991, 999, 1002 (N.D. Iowa 2008) (same). 5 In addressing these dual inquiries,
we apply a “categorical approach,” generally looking “only to the fact of
conviction and the statutory definition of the prior offense, and do not generally
consider the particular facts disclosed by the record of conviction.” James, 127
S. Ct. at 1593-94 (quotation omitted); see Gray, 535 F.3d at 131 (applying Begay
using categorical approach); Archer, 531 F.3d at 1350 (same). If need be,
however, we will apply the modified categorical approach when, for example, the
statute of conviction applies to a broader range of conduct than would fit within
the ACCA’s residual language. See Shepard, 544 U.S. at 15-18, 20-21; Taylor,
5
Because of the similarity in language between 18 U.S.C. § 924(e)(2)(B)
and U.S.S.G. § 4B1.2(a), this court has occasionally looked to precedent under
one of these provisions as guidance under the other provision in determining
whether a conviction qualifies as a crime of violence. See United States v. Tiger,
538 F.3d 1297, 1297-98 (10th Cir. 2008); United States v. Moyer, 282 F.3d 1311,
1315 n.2 (10th Cir. 2002); see also United States v. Karam, 496 F.3d 1157,
1166-67 (10th Cir. 2007); United States v. Rowland, 357 F.3d 1193, 1195 (10th
Cir. 2004); United States v. Lucio-Lucio, 347 F.3d 1202, 1206 n.6 (10th Cir.
2003); cf. United States v. Springfield, 196 F.3d 1180, 1185 (10th Cir. 1999).
Further, we have previously applied Begay to U.S.S.G. § 4B1.2. See Tiger, 538
F.3d at 1298.
14
495 U.S. at 577-78, 598-602.
i. Whether a Utah conviction for failing to stop at an
officer’s command presents a serious potential risk
of physical injury to another
Utah defines the offense of failing to stop at an officer’s command as
follows:
[a]n operator who receives a visual or audible signal from a peace
officer to bring the vehicle to a stop may not:
(i) operate the vehicle in willful or wanton disregard of the
signal so as to interfere with or endanger the operation of
any vehicle or person; or
(ii) attempt to flee or elude a peace officer by vehicle or
other means.
Utah Code § 41-6a-210(1)(a). 6
6
This statute was previously enumerated as Utah Code § 41-6-13.5(1). See
State v. Simpson, 904 P.2d 709, 712 (Utah Ct. App. 1995). Effective February
2005, however, that section was renumbered as Utah Code § 41-6a-210. While
the language of the earlier statute was the same as that of the current statute, the
earlier statute was not broken into two separate sections, as the statute is now.
See id.
Addressing the prior version of this statute, the Utah Court of Appeals held
that,
[t]o be guilty of this offense, a driver must first willfully or wantonly
disregard an officer’s visual or audible signal to stop the vehicle. The
crime is then completed in one of two ways: Either (1) the driver
operates his vehicle in a way that interferes with the operation of any
other vehicle or endangers any person or vehicle, or (2) the driver
attempts to flee or elude the officer. Accordingly, a violation of section
41-6-13.5 could be characterized either as “failing to respond to a peace
officer’s signal to stop” or as “fleeing or eluding a peace officer.”
(continued...)
15
Although this court has not yet addressed whether a conviction under this
statute, or similar statutes, poses a serious potential risk of physical injury to
another, other circuits have considered the question. From these cases “[a]
consensus has emerged that evasive driving offenses . . . constitute a category of
‘violent’ crime within the meaning of the ACCA’s provision for ‘conduct that
presents a serious potential risk of physical injury to another.’” 7 Powell v. United
States, 430 F.3d 490, 491-92 (1st Cir. 2005) (per curiam) (quoting 18 U.S.C.
§ 924(e)(2)(B)(ii) (footnote omitted)) (holding that conviction for eluding police,
under Maine statute which provides that “[w]hoever, after being requested or
signaled to stop, attempts to elude a law enforcement officer by driving a vehicle
at a reckless rate of speed which results in a high-speed chase between the
operator’s vehicle and any law enforcement vehicle using a blue light and siren is
guilty” of a felony-level crime, involves conduct that presents a serious potential
6
(...continued)
Simpson, 904 P.2d at 712. Utah courts have not addressed the elements of this
offense under the current statute. But Simpson’s interpretation of the earlier
statute no longer appears accurate in light of the subsequent legislative revision,
breaking this statute into two separate provisions and relegating the “willful or
wanton” language only to the first of those sections.
7
Because these cases pre-date Begay, they considered only whether the
prior conviction presented a serious potential risk of injury to another, and did not
further consider whether the prior conviction was for an offense roughly similar
in kind, as well as degree of risk posed, by the offenses enumerated in
§ 924(e)(2)(B)(ii), before concluding that the offense qualified as a violent felony
under the ACCA. See Powell v. United States, 430 F.3d 490, 491-92 (1st Cir.
2005) (per curiam).
16
risk of physical injury to another for purposes of 18 U.S.C. § 924(e) (quotation
omitted)); see United States v. Orisnord, 483 F.3d 1169, 1182 (11th Cir.) (holding
conviction under Florida statute applying to one who “willfully flees or attempts
to elude a law enforcement officer . . . and during the course of the fleeing or
attempted eluding . . . drives at high speed, or in any manner which demonstrates
a wanton disregard for the safety of persons or property,” presents a serious
potential risk for the physical injury of another for purposes of U.S.S.G. § 4B1.2
(quotation, alteration omitted)), cert. denied, 128 S. Ct. 673 (2007); United States
v. Kendrick, 423 F.3d 803, 809-10 (8th Cir. 2005) (holding that Oregon
conviction for fleeing or eluding police, under statute which provides that “[a]
person commits the crime of fleeing or attempting to elude a police officer if,
while operating a motor vehicle, he knowingly flees or attempts to elude an
identifiable police officer after the officer has just given a visual or audible signal
to stop,” involves conduct that presents a serious potential risk of physical injury
to another for purposes of U.S.S.G. § 4B1.2 (quotation omitted)); United States v.
Howze, 343 F.3d 919, 921-22 (7th Cir. 2003) (holding conviction for fleeing from
an officer, in violation of a Wisconsin statute providing that “[n]o 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
17
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,” presents a
serious potential risk of physical injury to another for purposes of 18 U.S.C.
§ 924(e) (quotation omitted)); United States v. James, 337 F.3d 387, 389-91 (4th
Cir. 2003) (holding conviction under South Carolina law for “failure to stop for a
blue light,” which requires proof “(1) that the defendant was driving a motor
vehicle; (2) that he was driving it on a road, street, or highway of the 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,” presents a serious potential risk of
physical injury to another for purposes of 18 U.S.C. § 924(e)); see also United
States v. Rosas, 410 F.3d 332, 334-35 (7th Cir. 2005) (per curiam) (following
Howze and concluding that a Wisconsin conviction for “fleeing a police officer”
presents a serious potential risk of physical injury to another for purposes of
U.S.S.G. § 4B1.2(a)). 8 We agree with the reasoning of these courts. Although
8
These circuits each applied a categorical approach to reach this conclusion.
Other courts, applying different statutes, have instead applied a modified
categorical approach and, thus, also considered the relevant charging and
conviction documents to determine if a prior conviction for fleeing or eluding
police presents a serious potential risk of physical injury to another. See United
States v. Foreman, 436 F.3d 638, 640-43 (6th Cir. 2006) (holding modified
categorical approach must be applied to determine if Michigan fourth-degree
felony conviction for fleeing and eluding, in a particular case, presented a serious
potential risk of physical injury to another; the Michigan statute at issue provided
that “[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, acting in the
lawful performance of his or her duty, directing the driver to bring his or her
(continued...)
18
the statutes at issue in these cases are not all identical to the Utah statute at issue
here, they are sufficiently similar to support our conclusion that a Utah conviction
under Utah Code § 41-6a-210(1)(a) for failing to stop at an officer’s command, in
the ordinary case, presents a serious potential risk of physical injury to another.
Many of these decisions from other circuits draw analogies between
8
(...continued)
motor vehicle to a stop shall not willfully fail to obey that direction by increasing
the speed of the vehicle, extinguishing the lights of the vehicle, or otherwise
attempting to flee or elude the police or conservation officer. This subsection
does not apply unless the police or conservation officer giving the signal is in
uniform and the officer’s vehicle is identified as an official police or department
of natural resources vehicle.”); United States v. Kelly, 422 F.3d 889, 891, 893-96
(9th Cir. 2005) (holding modified categorical approach was required to determine
whether prior conviction under Washington’s statute, criminalizing “a wanton and
willful disregard for the lives or property of others while attempting to elude a
pursuing police vehicle,” was a crime of violence under U.S.S.G. § 4B1.2);
United States v. Martin, 378 F.3d 578, 581-84 (6th Cir. 2004) (applying modified
categorical approach to determine whether prior conviction under Michigan’s
third-degree fleeing and eluding statute presents a serious potential risk of
physical injury to another; the statute at issue provided that “a driver of a motor
vehicle who is given . . . a signal by an officer . . . directing the driver to . . . stop
shall not willfully fail to obey that direction by increasing the speed of the
vehicle, extinguishing the lights of the vehicle, or otherwise attempting to flee or
elude the . . . officer,” and that a third-degree offense occurs when such violation
“results in a collision or accident, if the violation occurred in an area where the
speed limit is 35 miles an hour or less or if the defendant has a previous
conviction for actual or attempted fourth-degree fleeing or eluding or similar
misconduct”) (quotations omitted)); see also United States v. Jennings, 515 F.3d
980, 989-90 n.9 (9th Cir. 2008) (reaffirming Kelly’s treatment of Washington’s
eluding statute). These cases generally considered broader statutes that permit a
conviction for eluding police not only when a defendant’s conduct might pose a
serious potential risk for physical injury to another, but also when a defendant
instead caused property damage, see Kelly, 422 F.3d at 891; or instead when an
aggravated conviction may be based upon the fact that the defendant had a
previous conviction for similar conduct, see Martin, 378 F.3d at 581-84.
19
convictions for eluding police and convictions for escape from police custody or
jail, which courts have also treated as presenting a serious potential risk of
physical injury to another. See Kendrick, 423 F.3d at 809; Howze, 343 F.3d at
921-22; James, 337 F.3d at 391 n.4. The analogy is apt. Like those circuits, we,
too, have recognized that
every escape scenario is a powder keg, which may or may not explode
into violence and result in physical injury to someone at any given time,
but which always has the serious potential to do so. A defendant who
escapes from a jail is likely to possess a variety of supercharged
emotions, and in evading those trying to recapture him, may feel
threatened by police officers, ordinary citizens, or even fellow escapees.
Consequently, violence could erupt at any time. Indeed, even in a case
where a defendant escapes from a jail by stealth and injures no one in
the process, there is still a serious potential risk that injury will result
when officers find the defendant and attempt to place him in custody.
United States v. Gosling, 39 F.3d 1140, 1141, 1142 (10th Cir. 1994) (citations
omitted) (addressing whether escape presents a serious potential risk of physical
injury to another for purposes of U.S.S.G. § 4B1.2); see also Avalos, 506 F.3d at
980; Springfield, 196 F.3d at 1185 (noting Tenth Circuit has “held categorically
that an escape always constitutes conduct that presents a serious potential risk of
physical injury to another, for the purpose of the ACCA as well as for the career
offender provisions of the sentencing guidelines” (quotation, alterations
omitted)).
“Thus, under the ACCA and the United States Sentencing Guidelines,
escape is always a violent crime. It is irrelevant whether the escape actually
20
involved any violence or whether defendant was convicted under a state statute
that defines escape as a nonviolent offense.” Springfield, 196 F.3d at 1185
(holding conviction for “walkaway” escape presents a serious potential risk of
physical injury to another for purposes of 18 U.S.C. § 924(e)); see also United
States v. Patterson, 472 F.3d 767, 783 (10th Cir. 2006), petition for cert. filed,
(U.S. Apr. 24, 2007) (No. 06-10972); United States v. Small, 423 F.3d 1164, 1188
n.13 (10th Cir. 2005). 9
The same reasoning supports a conclusion here that prior convictions for
9
We do not read Begay to have called into question our prior Tenth Circuit
precedent concluding that escape presents a serious potential risk of physical
injury to another for purposes of the ACCA. In fact, this court has continued to
rely upon this precedent even after Begay. See United States v. Ellis, 525 F.3d
960, 965 (10th Cir. 2008) (relying on Tenth Circuit precedent holding escape is a
violent felony, after Begay, but not specifically discussing Begay), cert. denied,
129 S. Ct. 318 (2008). We recognize that the Supreme Court has granted a writ
of certiorari to decide whether an escape conviction should be deemed a violent
felony under the ACCA. See Chambers v. United States, 128 S. Ct. 2046 (2008)
(granting certiorari); see also Chambers v. United States, No. 06-11206, 2007 WL
5117449 (May 8, 2007) (petition for certiorari presenting the question of
“[w]hether a defendant’s failure to report for confinement ‘involves conduct that
presents a serious potential risk of physical injury to another’ such that a
conviction for escape based on that failure to report is a ‘violent felony’ within
the meaning of the Armed Career Criminal Act, 18 U.S.C. § 924(e)”). But, at
least for the time being, we must continue to apply our prior precedent.
Even if the Supreme Court concludes that an escape conviction does not
categorically present a serious potential risk of physical injury to another, we
would conclude that a Utah conviction for failing to obey an officer’s command
would categorically present a serious potential risk of physical injury to another.
Such a conviction under Utah law will always involve the use of a motor vehicle.
It will always involve an overt, rather than covert, disobedience of an officer’s
command and will occur directly in the officer’s presence. And it will likely
occur in the presence of innocent and unsuspecting bystanders.
21
eluding or evading police, at least when they involve a vehicle, should also
categorically be deemed to present a serious potential risk of physical injury to
another. “There is little doubt that felony fleeing involves, at the very least, the
same risks of physical injury to another as a walk-away escape.” Kendrick, 423
F.3d at 809.
Flight to avoid apprehension is one means through which the risk of
escape may be realized. When the crime is flight to avoid
apprehension, what is only a risk for escape becomes a certainty.
Bystanders are in particular jeopardy. Collisions between fleeing
vehicles and pedestrians or others who get in the way are common.
Thus, if all escapes are violent crimes, all flights to avoid arrest must
be violent crimes. Indeed, flight may be even more dangerous than
escape, because many escapes do not entail flight to avoid
capture–but all flights involve that risk-creating conduct.
Howze, 343 F.3d at 922 (citations omitted); see also Orisnord, 483 F.3d at
1182-83; Martin, 378 F.3d at 583 (suggesting “fleeing and eluding in most
settings will pose a greater risk of injury than escape”).
Moreover,
the dangerous circumstances surrounding a person’s attempt to flee
from law enforcement are compounded by the person’s operation of a
motor vehicle. . . . As a person is in flight from custody, his vehicle
has the potential to become a deadly or dangerous weapon. Further,
under the stress and urgency which will naturally attend his situation,
a person fleeing from law enforcement will likely drive recklessly and
turn any pursuit into a high-speed chase with the potential for serious
harm to police or innocent bystanders.
Kendrick, 423 F.3d at 809 (citations, quotation marks, alterations omitted); see
also Orisnord, 483 F.3d at 1182-83; Martin, 378 F.3d at 583.
22
Finally we note that a crime of evading or eluding police in a vehicle
generally involves a “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; see also Orisnord, 483
F.3d at 1183; Martin, 378 F.3d at 583. “Such a confrontation inherently presents
the serious potential risk of physical injury because the fleeing driver intent on
his goal of eluding the officer faces the decision of whether to dispel the officer’s
interference or yield to it.” Martin, 378 F.3d at 583 (quotations, alterations
omitted); see also Orisnord, 483 F.3d at 1183.
Thus, we conclude here that a conviction under Utah law for failing to stop
a vehicle at an officer’s command also categorically presents a serious potential
risk of physical injury to another for purposes of § 924(e)(2)(B)(ii). 10 While there
may be escapes that do not involve a direct confrontation, a driver’s refusal to
10
Although in applying the categorical approach we cannot rely on the
specific conduct on which West’s prior conviction is based in order to determine
whether his prior conviction qualifies under the ACCA, it is fair to note that the
facts underlying his prior conviction for failing to stop at an officer’s command,
as stated in the PSR, do illustrate why such a conviction will, in the ordinary
case, present a serious potential risk of injury to another. West tried to avoid a
traffic stop for speeding by accelerating his car through city streets, running
several stop signs, spinning out of control in a yard and running through several
mailboxes. Clearly such conduct presented a serious potential risk for injury to
bystanders and the officers giving chase.
23
stop a vehicle when commanded to do so will always be directly confrontational.
A driver’s decision to disobey a police officer’s command is much more likely
than even an escape to cause the officer to take steps to stop and apprehend the
recalcitrant driver. And that effort, when combined with the defendant’s efforts
to avoid capture, will, in the ordinary case, categorically present a serious
potential risk of injury to others. Therefore, a prior conviction under Utah law for
failing to stop a vehicle on an officer’s command will, categorically, present a
serious potential risk of injury to another. See United States v. Spells, 537 F.3d
743, 749-51 (7th Cir. 2008) (reaching the same conclusion, after Begay, regarding
an Indiana conviction for “fleeing a law enforcement officer, in a vehicle”).
ii. Whether a Utah conviction for failing to respond to
an officer’s command is roughly similar in kind, as
well as degree of risk posed, to those crimes
specifically enumerated in § 924(e)(2)(B)(ii)
Begay makes clear that to qualify as a violent felony under the ACCA’s
residual language, it is not enough for a prior conviction to present a serious
potential risk of physical injury to another. See 128 S. Ct. at 1584-85. The
conviction must also be “roughly similar, in kind as well as in degree of risk
posed, to” those offenses specifically enumerated in 18 U.S.C. § 924(e)(2)(B)(ii).
Begay, 128 S. Ct. at 1585.
In Begay, the Court concluded that a conviction for driving under the
influence of alcohol (“DUI”) did not fall within the ACCA’s residual language.
24
See id. at 1583, 1588. But that decision is not easily applied to convictions for
other types of offenses. Accord United States v. Charles, 566 F. Supp. 2d 1229,
1233 (D. Kan. 2008) (noting “[t]he application of the Begay decision is hardly a
simple proposition”).
a. Begay’s holding
In the first part of the Begay opinion, the Court considered
§ 924(e)(2)(B)(ii)’s legislative history, explaining that the ACCA originally
enhanced sentences only of offenders with three prior convictions for robbery or
burglary. See id. at 1585-86. In amending that provision, “Congress sought to
expand that definition to include both crimes against the person (clause (i)) and
certain physically risky crimes against property (clause (ii)).” Id. at 1586.
“When doing so, Congress rejected a broad proposal that would have covered
every offense that involved a substantial risk of the use of physical force against
the person or property of another. Instead, it added the present examples.” Id.
(quotation, citations omitted).
This discussion in Begay suggests that Congress intended
§ 924(e)(2)(B)(ii)’s residual language to include other risky property crimes that
are similar to the expressly listed offenses. The Begay Court did not end its
discussion with the act’s legislative history, however. Instead, the Court shifted
directions:
[T]he Armed Career Criminal Act focuses upon the special danger
25
created when a particular type of offender–a violent criminal or drug
trafficker–possesses a gun. In order to determine which offenders fall
into this category, the Act looks to past crimes. This is because an
offender’s criminal history is relevant to the question whether he is a
career criminal, or, more precisely, to the kind or degree of danger the
offender would pose were he to possess a gun.
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.
Begay, 128 S. Ct. at 1587 (citations omitted). Based upon this reasoning, the Court
ultimately indicated that prior convictions falling within § 924(e)(2)(B)(ii)’s residual
language should be similar to burglary, arson, extortion or crimes involving
explosives because they “typically involve purposeful, violent, and aggressive
conduct.” Begay, 128 S. Ct. at 1586 (quotations omitted).
The first part of Begay’s analysis, then, suggests that a crime will be “roughly
similar, in kind as well as in degree of risk posed, to” those offenses specifically
enumerated in 18 U.S.C. § 924(e)(2)(B)(ii) if the crime is a physically risky crime
against property. See Begay, 128 S. Ct. at 1585-86. Several courts have applied
Begay in this manner. See United States v. Johnson, 286 Fed. App’x 155, 157-58 &
158 n.5 (5th Cir. 2008) (unpublished) (per curiam) (applying Begay and holding that
prior Arkansas conviction for terroristic threatening—that is, for threatening to cause
the death of another—was not a violent felony under the ACCA’s residual language
26
because it was not a risky property crime like the offenses specifically set forth in
§ 924(e)(2)(B)(ii)); cf. United States v. Nichols, 563 F. Supp. 2d 631, 636 (S.D.
W.Va. 2008) (noting, among other things, that 18 U.S.C. § 924(e)(2)(B)(ii)’s
enumerated offenses “involve inherent actions of trespass against persons, property,
or both”). Reading Begay in this manner would arguably exclude the offense at issue
here from § 924(e)(2)(B)(ii)’s residual provision—a Utah conviction for failing to
stop at an officer’s order is not a property crime, risky or otherwise. We reject that
interpretation of Begay, however.
Instead, relying on the second part of the opinion, we read Begay to hold that
the crime at issue is sufficiently similar to the offenses enumerated in
§ 924(e)(2)(B)(ii) if it “typically involves purposeful, violent, and aggressive
conduct.” Begay, 128 S. Ct. at 1586 (quotations omitted). We interpret Begay in
this manner for several reasons.
First, although Begay discusses the fact that Congress intended that
§ 924(e)(2)(B)(ii) cover physically risky property crimes, the dispositive section of
the Begay opinion specifically holds, instead, that the ACCA’s residual language
includes prior convictions for offenses that, like burglary, arson, extortion or crimes
involving explosives, concern conduct that is “purposeful, violent, and aggressive.”
See Begay, 128 S. Ct. at 1584-86.
Second, even the specific crimes enumerated in § 924(e)(2)(B)(ii) are
themselves not exclusively physically risky property crimes. For instance, while
27
“[a]t common law, extortion is committed when a public officer, under color of
office, corruptly obtains a fee to which he is not entitled,” Charles E. Torcia, 4
Wharton’s Criminal Law § 654 (15th ed. Sept. 2008), “[t]he crime of extortion has
been expanded by statute to include the obtaining of money, property, or anything
of value by any person, by means of a threat,” id. § 658 (emphasis added).
Similarly, § 924(e)(2)(B)(ii)’s enumerated crime of burglary, defined generically by
the Supreme Court in Taylor, is not exclusively a property crime. For purposes of
the ACCA, the Taylor Court defined generic burglary to have “the basic elements of
unlawful or unprivileged entry into, or remaining in, a building or structure, with
intent to commit a crime.” 495 U. S. at 599. Thus, while the unauthorized entry into
a building is a property crime, the second element of generic burglary—an intent to
commit a crime—encompasses a broad range of criminal conduct that may be
directed at property or at a person. See Wayne R. LaFave, 3 Substantive Criminal
Law, § 21.1(e) (2d ed. 2003). And the use of explosives does not necessarily require
use against property rather than use against a person.
The third reason we decline to limit the ACCA’s residual language to only
property crimes is that, as the Supreme Court noted in Begay, the focus of the ACCA
is on gun violence, see Begay, 128 S. Ct. at 1586; see also id. at 1595 (Alito, J.,
dissenting), and keeping guns out of the hands of criminals who act purposefully and
who have violent backgrounds, see Spells, 537 F.3d at 751-53. Enhancing a later
sentence for gun possession only because the defendant had several prior convictions
28
for property crimes would not necessarily serve that purpose. It is a much closer fit
to enhance the sentence of a defendant who has a criminal history involving
“purposeful, violent and aggressive” crimes.
Fourth, it is important to note that if a property crime was the lynchpin, the
Begay Court could have concluded, but did not conclude, that a prior DUI conviction
did not fall within § 924(e)(2)(B)(ii)’s residual language because it was not a
property crime. See Charles, 566 F. Supp. 2d at 1234 (D. Kan.) (noting that if the
relevant question under Begay were whether the prior conviction was for a property
crime, “one is left with the question why the majority in Begay did not simply
distinguish DUI as a non-property crime, or at least mention this distinction, instead
of discussing how DUI did not involve purposeful, violent and aggressive conduct”).
Rather, the Court specifically held instead that DUI was a strict liability crime that
was not purposeful, violent and aggressive. See Begay, 128 S. Ct. at 1586-88. The
focus of Begay’s dispositive section, therefore, was more on the manner in which a
perpetrator committed a crime rather than the category of the crime committed.
Lastly, our conclusion that Begay requires that a crime falling within the
ACCA’s residual language be one involving purposeful, violent and aggressive
conduct is bolstered by the fact that a weighty majority of courts applying Begay
have drawn this same conclusion and have focused on this same language. See
United States v. Herrick, No. 07-1553, 2008 WL 4603551, at *5 & n.7, *6 n.8 (1st
Cir. Oct. 17, 2008) (to be reported at 545 F.3d 53); United States v. Jennings, 544
29
F.3d 815, 820 (7th Cir. 2008); Smith, 544 F.3d at 784-85 (7th Cir.); United States
v. Templeton, 543 F.3d 378, 380, 382-83 (7th Cir. 2008); United States v. Williams,
537 F.3d 969, 972, 974-75 (8th Cir. 2008); Spells, 537 F.3d at 751-52 (7th Cir.);
United States v. Billups, 536 F.3d 574, 582-83 (7th Cir. 2008); Gray, 535 F.3d at
131-32 (2d Cir.); Archer, 531 F.3d at 1351 (11th Cir.); Mayer, 530 F.3d at 1108-09
(9th Cir.); United States v. Bartee, 529 F.3d 357, 363 (6th Cir. 2008); Williams, 529
F.3d at 7 (1st Cir.); United States v. Davis, No. 07-CR-49-LRR, — F. Supp. 2d —,
2008 WL 4290959, at *4 (N.D. Iowa Sept. 17, 2008); United States v. France, 574
F. Supp. 2d 801, 807 (W.D. Mich. 2008); United States v. Rodriguez, 571
F. Supp. 2d 580, 586-88 (S.D.N.Y. 2008); Charles, 566 F. Supp. 2d at 1233-35 (D.
Kan.); United States v. Dates, No. 06-0083, 2008 WL 2620162, at *2 (W.D. Pa. June
30, 2008); United States v. Lee, No. 07-CR-131, 2008 WL 2595190, at *1 (E.D. Wis.
June 27, 2008); United States v. Harris, No. 1:08cr45 (JCC), 2008 WL 2228526, at
*3 (E.D. Va. 2008); Papakee, 550 F. Supp. 2d at 1002-03 (N.D. Iowa). See generally
United States v. Morris, 527 F.3d 1059, 1060-61 (10th Cir. 2008) (focusing on this
language when addressing Begay generally); United States v. Urbano,
No. 07-10160-01-MLB, 2008 WL 1995074, at *2 (D. Kan. May 6, 2008) (same). But
see Johnson, 2008 WL 2725494, at *2 & n.5 (5th Cir.) (unpublished) (reading Begay
to require a crime to be a property crime to satisfy the residual clause).
Thus, we conclude that the Court did not limit § 924(e)(2)(B)(ii) to property
crimes, but instead held that a prior conviction falling into the residual language
30
must involve purposeful, violent and aggressive conduct. See Begay, 128 S. Ct. at
1584-86.
b. Whether a Utah conviction for failing to
stop at an officer’s command involves
purposeful, violent, and aggressive conduct
We next consider whether West’s conviction for failing to stop at an officer’s
command was for an offense that involves purposeful, violent and aggressive
conduct. See generally Williams, 529 F.3d at 7 (noting the difficulty in making this
determination because “[a]djectives like ‘purposeful’ and ‘aggressive’ denote
qualities that are ineluctably manifested in degree and appear in different
combinations; they are, therefore, imprecise aids” (footnote omitted)); Rodriguez,
571 F. Supp. 2d at 585 (noting the Supreme Court “did not elaborate on what it
meant by writing that burglary, for instance, is typically ‘purposeful, violent, and
aggressive’”). Applying a categorical approach, we look “only to the fact of
conviction and the statutory definition of the prior offense, and do not generally
consider the particular facts disclosed by the record of conviction” to determine if
“the conduct encompassed by the elements of the offense, in the ordinary case,”
qualifies as a violent felony under the ACCA’s residual language. James, 127 S. Ct.
at 1593-94, 1597 (quotation marks omitted); see also Fell, 511 F.3d at 1039-40.
Again, the Utah statute at issue here provides that
[a]n operator who receives a visual or audible signal from a peace
officer to bring the vehicle to a stop may not:
31
(i) operate the vehicle in willful or wanton disregard of the
signal so as to interfere with or endanger the operation of
any vehicle or person; or
(ii) attempt to flee or elude a peace officer by vehicle or
other means.
Utah Code § 41-6a-210(1)(a).
i. Violent and aggressive
Applying a categorical approach, we conclude that a conviction under this
statute will, in the ordinary case, involve violent and aggressive conduct. “As
commonly understood, aggressive behavior is offensive and forceful and
characterized by initiating hostilities or attacks.” Charles, 566 F. Supp. 2d at 1238
(citing American Heritage Dictionary of the English Language (4th ed. 2006)).
There is little doubt that knowingly flaunting the order of a police officer is
aggressive conduct. See Spells, 537 F.3d at 752 (concluding that using a vehicle
knowingly or intentionally to flee from an officer “is inherently ‘aggressive’”);
see also Charles, 566 F. Supp. 2d at 1238. “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 needlessly endanger himself in pursuit.” Spells,
537 F.3d at 752 (holding Indiana offense of fleeing from a police officer was an
aggressive crime, even though the state statute did not require proof that the
defendant endangered others). Like “[b]urglary of a dwelling, arson, extortion,
and the use of explosives,” therefore, failing to stop at an officer’s command
32
comprises an act “aimed at other persons or property where persons might be
located and thereby injured.” Archer, 531 F.3d at 1351.
Drawing again on the analogy between failing to stop at an officer’s
command and an escape from custody further bolsters our conclusion.
The typical conduct involved in escaping from . . . custody fits the
meaning of aggressive as well as the typical conduct involved in
burglary [one of the offenses enumerated in 18 U.S.C.
§ 924(e)(2)(B)(ii)]. An escapee takes the offensive in defying the
authority of the . . . officers to confine him. In doing so, the offender
knows his actions will be considered hostile by the
responsible . . . officers who will be expected to resist, oppose and
resolve the hostile situation with all reasonable force. Similarly, a
burglar takes the offensive in trespassing upon another’s property for
the purpose of taking something while knowing that any occupant of the
property would likely consider the burglar’s actions to be a hostile
action.
Charles, 566 F. Supp. 2d at 1238. But cf. Templeton, 543 F.3d at 383-84 (noting
that, while some escapes could involve more purposeful, violent and aggressive
conduct than burglary or extortion, walkaway escapes or a failure to report to
custody are not sufficiently violent or aggressive to fall under the ACCA’s
definition of a violent felony). For similar reasons, we conclude that failing to
stop at an officer’s command is also an aggressive offense.
In addition, it is, like burglary, a violent offense.
[T]he Supreme Court in Taylor identified the violent aspect of a
burglary as the possible confrontation between the burglar and the
occupant or someone else investigating. The Court went so far as to
recognize that the offender’s own awareness of this possibility may
mean that he is prepared to use violence if necessary to carry out his
plans or to escape. More recently, the Supreme Court in James
33
described this same possible confrontation as the main risk of burglary.
Thus, a burglar’s entry need not be violent, for it creates the possibility
of violence should the burglar confront an occupant, officer or
bystander. This same kind of potential for violence exists with an
escape offense, but it typically exists to a greater degree. With an
escape, the offender may not need violence to leave his confinement,
but his offense is not over until he is confronted by an officer in a
situation typically accompanied by force and violence.
Charles, 566 F. Supp. 2d at 1238 (citations, quotations omitted). But cf.
Templeton, 2008 WL 4140616, at 383-84.
Like burglary, and even more like escape, the offense of failing to stop at
the command of a police officer will typically lead to a confrontation with the
officer being disobeyed. It is likely to lead, in the ordinary case, to a chase or at
least an effort by police to apprehend the perpetrator. All of these circumstances
increase the likelihood of serious harm to the officers involved as well as any
bystanders that by happenstance get in the way of a fleeing perpetrator or his
pursuers. For these reasons, we conclude that the crime of failing to stop at an
officer’s command is, in the ordinary case, an offense involving violent and
aggressive behavior. See Lee, 2008 WL 2595190, at *1 (E.D. Wis.) (applying
Begay and concluding a prior Wisconsin conviction for fleeing was violent and
aggressive). But see Urbano, 2008 WL 1995074, at *2-*3 (D. Kan.) (concluding
prior Kansas conviction for fleeing did not encompass violent and aggressive
conduct sufficient to be considered a crime of violence under U.S.S.G.
§ 4B1.2(a)(2), because “[a] person may be charged with fleeing and eluding for
34
merely failing to stop after an officer signals for that individual to stop. To be
charged with a felony” under the Kansas statute, “a person may [only] fail to stop
and then drive around a tire deflating device.”).
ii. Purposeful
Begay also requires that a crime that falls within the ACCA’s residual
language be purposeful. See 128 S. Ct. at 1586. Begay equates purposeful with
deliberate or intentional. See id. at 1587-88; see also Spells, 537 F.3d at 752
(concluding Indiana statute proscribing “knowingly or intentionally” fleeing a
police officer encompasses purposeful conduct that falls within the ACCA’s
residual language); Gray, 535 F.3d at 131 (noting Begay’s strong emphasis on
“intentional-purposeful-conduct”); Charles, 566 F. Supp. 2d at 1238 (noting “the
deliberate kind of behavior associated with violent criminal use of firearms”
discussed in Begay) (quotation omitted).
The second section of the Utah statute, which criminalizes attempting to
flee or elude police after receiving a signal to stop, clearly proscribes purposeful
conduct. See Urbano, 2008 WL 1995074, at *2 (D. Kan.) (concluding that
conduct addressed by Kansas statute that proscribes “willfully” failing or refusing
to bring a vehicle to a stop, “or . . . otherwise flee[ing] or attempt[ing] to elude a
pursuing police vehicle or police bicycle,” “clearly would be a result of
purposeful conduct”). Such conduct, in the ordinary sense, see James, 128 S. Ct.
at 1597, will be purposeful behavior. See Spells, 537 F.3d at 752. Furthermore,
35
[a]n individual’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 propensity 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 “dangerous,” but not reflective of someone “whom one normally
labels an armed career criminal.”
Id. at 752-53 (quoting Begay, 128 S. Ct. at 1587 (further quotation, alterations
omitted); relying on crime statistics from the Department of Justice’s Bureau of
Justice Statistics).
For similar reasons, the first section of the Utah statute—applying to a
driver who, after receiving an officer’s signal to stop, operates a “vehicle in
willful or wanton disregard” of that signal, “so as to interfere with or endanger
the operation of any vehicle or person”—also addresses purposeful conduct. See
Utah Code § 41-6a-210(1)(a)(i). Wilfully disregarding an officer’s signal is
purposeful conduct under the ACCA. Purposeful means “[d]one with a specific
purpose or mind; Deliberate.” Black’s Law Dictionary (8th ed. 2004). And
willful “means . . . intentionally or purposely as distinguished from accidentally
or negligently.” 11 Id.
11
Utah courts, in other circumstances, have treated willful conduct as
purposeful, see Green v. Turner, 4 P.3d 789, 793 (Utah 2000) (citing State v.
Larsen, 865 P.2d 1355, 1358 (Utah 1993)), or deliberate, see State v. Merila, 966
P.2d 270, 272 (Utah Ct. App. 1998); State v. Briggs, No. 20051061-CA, 2007 WL
772771, at * 2 (Utah Ct. App. Mar. 15, 2007) (unpublished). See generally 1
Wayne R. LaFave, Substantive Criminal Law §§ 5.1(c), 5.2(b) (2d ed. 2003)
(continued...)
36
To the extent that the term “wanton,” as used in this first section of the
Utah statute, can be read separately from the term “wilful,” it still, in the ordinary
case, see James, 128 S. Ct. at 1597, will encompass deliberate or intentional
conduct. See Utah Code § 41-6a-210(1)(a)(i). The statute specifically requires
that the driver first “receive” the officer’s signal. It is only after the driver has
received an officer’s signal to stop and then disregards that signal that the driver’s
conduct becomes criminal. Disregarding a signal after receiving it will, in the
ordinary case, see James, 128 S. Ct. at 1597, be knowing and deliberate or
intentional. Such conduct is purposeful under Begay. That is all we need to
determine here. 12
3. Conclusion
For these reasons, a conviction under Utah’s failure-to-stop statute will, in
11
(...continued)
(discussing Model Penal Code and equating acting with intent to acting
purposefully).
12
The Utah Supreme Court has never addressed the state of mind this
section requires. The Utah Court of Appeals did consider this language in State
v. Simpson, 904 P.2d 709 (Utah Ct. App. 1995), but that case presented a
different issue. In Simpson, the court was considering an earlier version of this
statute which, although using the same language as the current statute, did not
divide that language into different sections, as the current statute does. The later
revision of the statute into sections may well affect the meaning the Utah Court of
Appeals suggested in Simpson. And Simpson addressed a different question than
the one presented here. In Simpson, the issue the Utah Court of Appeals had to
resolve was whether the offense of disobeying a police officer should be deemed
a lesser included offense of failing to stop at an officer’s command. See id. at
712. Thus, we conclude that Simpson does not govern the question we must
decide in this case.
37
the ordinary case, involve purposeful, as well as violent and aggressive, conduct.
On this basis, we AFFIRM the district court’s determination that West had a total
of three prior convictions that qualify as violent felonies under the ACCA. As a
result, West was subject to a statutory mandatory minimum fifteen-year sentence.
B. Whether the district court erred in calculating West’s offense level
West challenges the district court’s calculation of his offense level under
the sentencing guidelines. The district court made that calculation in the
following manner: The court started with the base offense level of 24 which
applies to convictions for unlawfully possessing a firearm after “at least two
felony convictions of either a crime of violence or a controlled substance
offense.” U.S.S.G. § 2K2.1(a)(2). 13 The court then added the following: two
offense levels because the firearm West admitted possessing was stolen, see id.
§ 2K2.1(b)(4); four offense levels because West possessed this firearm “in
connection with another felony offense,” id. § 2K2.1(b)(5); 14 and six offense
levels because West, “in a manner creating a substantial risk of serious bodily
injury,” and “knowing or having reasonable cause to believe that a person was a
13
The district court applied the 2005 sentencing guidelines.
14
U.S.S.G. § 2K2.1(b)(5) requires the district court to add four offense
levels “[i]f the defendant used or possessed any firearm or ammunition in
connection with another felony offense.” In this case, the PSR added four levels
on this basis, noting West’s actions in “committing [the] offenses of Assault on a
Police Officer, Flight from Law Enforcement, and Assault With a Dangerous
Weapon (dangerous use of a fleeing vehicle),” as well as kidnapping, provided a
sufficient basis for this offense-level enhancement.
38
law enforcement officer, assaulted such officer during the course of the offense or
immediate flight therefrom,” id. § 3A1.2(c)(1). Those additional offense levels
resulted in an offense level of 36. 15 Finally, the district court reduced this offense
15
U.S.S.G. § 4B1.4(b) provides that
[t]he offense level for an armed career criminal is the greatest of:
(1) the offense level applicable from Chapters Two and
Three; or
(2) the offense level from § 4B1.1 (Career Offender) if
applicable; or
(3) (A) 34, if the defendant used or possessed the
firearm or ammunition in connection with either a
crime of violence, as defined in § 4B1.2(a), or a
controlled substance offense, as defined in
§ 4B1.2(b), or if the firearm possessed by the
defendant was of a type described in 26 U.S.C.
§ 5845(a); or
(B) 33, otherwise.
(Footnote omitted.) Because in this case West’s offense level calculated under
Chapters Two and Three, 36, was the greatest of these possible offense levels,
that is the offense level the district court applied. Even if West succeeds here in
reducing his Chapters Two and Three offense level calculations by twelve, the
lowest offense level he can receive, as an armed career criminal, is 33.
See U.S.S.G. § 4B1.4(b). The offense level must be reduced by three more levels
because of West’s acceptance of responsibility, see U.S.S.G. § 3E1.1. See id.
§ 4B1.4(b). Combined with West’s criminal history category of VI, that would
produce an offense level of 30, which results in an advisory sentencing range of
168 to 210 (instead of 235 to 293). See U.S.S.G. Sentencing Table. If he
qualifies as a career offender under the ACCA, however, West would still have to
serve his statutory mandatory minimum fifteen-year, or 180-month, sentence. If
so, the relevant within-guideline range, based upon this lower offense level,
would be between 180 and 210 months, lower than the 235-month sentence that
(continued...)
39
level by three, under U.S.S.G. § 3E1.1, for West’s acceptance of responsibility.
This produced a total offense level of 33. Coupled with West’s category VI
criminal history, this offense level resulted in an advisory guideline range of
between 235 and 293 months.
On appeal, West argues that the district court erred in applying the
two-level enhancement for possessing a stolen firearm; the four-level
enhancement for possessing the firearm in connection with another felony; and
the six-level enhancement for assaulting a police officer. 16 These three
15
(...continued)
the court previously imposed.
16
Citing Fed. R. App. P. 28, the Government argues that West failed to
present this argument adequately in his brief. “Federal Rule of Appellate
Procedure 28(a)(9)(A) requires appellants to sufficiently raise all issues and
arguments on which they desire appellate review in their opening brief. An issue
or argument insufficiently raised in the opening brief is deemed waived.” Becker
v. Kroll, 494 F.3d 904, 913 n.6 (10th Cir. 2007). This is “[b]ecause the appellant
comes to the court of appeals as the challenger, [and thus] bears the burden of
demonstrating the alleged error and the precise relief sought.” Hernandez v.
Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995).
West’s brief is admittedly confusing. And in the section of his brief
captioned “Mr. West Should not have been subjected to a 12 level Enhancement
based on Uncharged Related Conduct, or Conduct Characteristics not found by a
preponderance,” he does not argue that the district court erred in applying these
three enhancements. Instead, he challenges the appellate presumption that a
sentence imposed within an advisory guideline range is reasonable. Nevertheless,
in at least five different places in his brief, West does challenge the district
court’s application of these enhancements. And he clearly does so by arguing
there was no evidence to support the district court’s application of these
enhancements to his case. We deem this sufficient to raise this issue before this
court.
40
challenged enhancements were based upon facts set forth in the PSR:
6. Investigation into the instant offense began on August 9, 2005, when
Lehi Police were dispatched to a gas station when a woman reported to
the owner that she was being kidnaped [sic]. When police arrived they
blocked the defendant’s car with their vehicles. As they began
questioning the defendant, he put the car into reverse, backed up
abruptly, and recklessly hit the building. While the officer was
reaching into the vehicle the defendant put his car into drive and
rammed the patrol car, causing injuries to the officer, who was hanging
onto the car at the time. He then put the vehicle into reverse again and
floored the accelerator. The defendant again rammed the building and
then forward again as he rammed the patrol car again while flooring the
accelerator and spinning the rear tires as he was attempting to push the
patrol car out of its position. The defendant did not stop his attempts
to escape until an officer drew his weapon and pointed it at him. When
officers were attempting to restrain the defendant, he continued to resist
arrest. While searching the defendant police found a baggie of
methamphetamine.
7. Officers interviewed the kidnaping [sic] victim, and she reported
that the defendant and co-defendant entered her apartment and said that
she owed them money. She reported the defendant had nun chucks, and
told her he had mace. The defendant threatened to have her guest shot
if he (the guest) did not leave. She was told that she was going to go
with them and pay for gas for their vehicle. When they arrived at the
gas station she informed the clerk that she was being kidnaped [sic] and
locked herself in the bathroom.
8. Police searched the vehicle and found a stolen, fully loaded Ithaca
model 37, 12-gauge sawed-off shotgun in between the driver’s seat and
the center console. The overall length of the shotgun measured 31
inches, with a barrel length of 24 inches. Also found in the vehicle was
218.2 grams of marijuana packaged for sale in a large baggie wedged
in between the coolant reservoir and the engine firewall.
(R. v. VI, PSR paras. 6-8.)
West challenged these facts before the district court. In the first of three
sentencing memoranda he filed, West specifically objected to the four-level
41
increase for using the firearm in connection with a felony and the six-level
enhancement for assaulting a police officer, arguing that “at least 10 levels of
enhancements” were “unsubstantiated and unproven.” Later in that same
memorandum, he asserted that “[t]here is no evidence sufficient to prove either
beyond a reasonable doubt or by a preponderance the facts alleged that give rise
to” these two enhancements and argued that “in fact no one was kidnapped, or
injured.” 17 In response to that argument, the Government submitted to the district
court a video of West’s attempt to escape from police custody and informed the
district court that it would have its case agent available to testify at sentencing.
The Government, however, never offered the case agent’s testimony at
sentencing.
During the sentencing proceeding itself, West reiterated that “we’re here to
categorically say that there was no kidnapping. This woman, I think, panicked
when the police arrived and Mr. West’s position is she was going with us to get
some drugs.” In addition, West for the first time challenged the two-level
enhancement for possessing a stolen firearm. Defense counsel specifically argued
to the sentencing court, “I have yet to see any documentation that that firearm
was stolen, but there is somebody that is saying that that firearm is stolen and
more likely the state has produced somebody, hearsay, whatever it is, indicating
17
When a defendant objects to a fact stated in the PSR, the Government
bears the burden of proving that fact by a preponderance of the evidence. See
United States v. Wilken, 498 F.3d 1160, 1169 (10th Cir. 2007).
42
that that firearm may have been stolen.”
By disputing the PSR’s factual assertions underlying the application of the
three challenged enhancements, West invoked the district court’s Rule 32(i)(3)(B)
fact-finding obligation. “[T]o invoke the district court’s Rule 32 fact-finding
obligation, the defendant is required to make specific allegations of factual
inaccuracy.” United States v. Tindall, 519 F.3d 1057, 1062 (10th Cir. 2008)
(quotation marks omitted); see also Chee, 514 F.3d at 1115. The defendant has
“an affirmative duty to make a showing that the information in the presentence
report was unreliable and articulate the reasons why the facts contained therein
were untrue or inaccurate.” Chee, 514 F.3d at 1115 (quotation marks, alterations
omitted); see also Avalos, 506 F.3d at 979-80. West met that duty in this case.
Fed. R. Crim. P. 32(i)(3)(B) requires that the district court “must—for any
disputed portion of the presentence report or other controverted matter—rule on
the dispute or determine that a ruling is unnecessary either because the matter will
not affect sentencing, or because the court will not consider the matter in
sentencing.” A sentencing court’s “ruling on a disputed issue need not be
exhaustively detailed, but it must be definite and clear.” United States v.
Williams, 374 F.3d 941, 947 n.9 (10th Cir. 2004) (applying earlier version of
Rule 32); see also United States v. Ayon, 226 Fed. App’x 834, 837 (10th Cir.
June 19, 2007) (unpublished) (applying same principle to current Rule 32); United
States v. Solano-Ramos, 220 Fed. App’x 817, 821 (10th Cir. Mar. 27, 2007)
43
(unpublished) (same, in dicta).
We review de novo whether the district court complied with its Rule 32
obligations, see Tindall, 519 F.3d at 1062, and conclude it did not in this case.
The court never specifically addressed West’s objections to the PSR’s facts.
Instead, the court simply adopted the PSR “without change.” Adopting the PSR is
insufficient to satisfy the court’s Rule 32’s fact-finding obligation. See United
States v. Rodriguez-Delma, 456 F.3d 1246, 1253 (10th Cir. 2006); United States
v. Dallah, 192 Fed. App’x 725, 730 (10th Cir. Aug. 10, 2006) (unpublished);
United States v. Begay, 117 Fed. App’x 682, 683 (10th Cir. Dec. 8, 2004)
(unpublished); see also Williams, 374 F.3d at 947 (applying earlier version of
Rule 32); United States v. Guzman, 318 F.3d 1191, 1198 (10th Cir. 2003) (same,
citing cases).
“If the district court fails to comply with Rule 32(i)(3)(B), we must remand
for the court to either make the necessary findings or enter a declaration that it
did not take the controverted matters into account in sentencing the defendant.”
United States v. Cereceres-Zavala, 499 F.3d 1211, 1213-14 (10th Cir. 2007). For
these reasons, we are compelled to REMAND this case, directing the district court
to resolve the factual disputes West raised or explain why it is unnecessary for
sentencing purposes to do so. 18 If the district court determines that the
18
To the extent that West also argues on appeal that the district court abused
its discretion in refusing to impose a sentence below the advisory guideline range,
(continued...)
44
Government did not prove the disputed facts by a preponderance of the evidence,
the district court should then conduct a new sentencing proceeding, excluding
those disputed and unproven factual allegations.
III. Conclusion
We REMAND for the district court to conduct proceedings consistent with
this decision.
18
(...continued)
we do not need to address that argument here.
45