U.S. v. Williams

• Decision Date: 11 August 2008
• Docket Number: No. 07-2679.,07-2679.
• Citation: 537 F.3d 969
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth D. WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

537 F.3d 969

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth D. WILLIAMS, Defendant-Appellant.

No. 07-2679.

United States Court of Appeals, Eighth Circuit.

Submitted: March 13, 2008.

Filed: August 11, 2008.

Diane Dragan, AFPD, St. Louis, MO, for appellant.

Thomas J. Mehan, argued, St. Louis, MO, for appellee.

Before WOLLMAN, HANSEN, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

The defendant, Kenneth D. Williams, pled guilty to being a felon in possession of a firearm. On appeal, Williams argues that the district court erred by enhancing his sentence based on a finding that his prior convictions for auto theft and auto tampering qualify as crimes of violence under the United States Sentencing Guidelines. We reverse and remand for resentencing.

I. Background

Williams pled guilty to being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1). The district court sentenced Williams to a term of 57 months in prison, a sentence within the advisory Guidelines range. The advisory range was calculated using § 2K2.1(a)(2) of the United States Sentencing Guidelines. That subsection enhanced Williams's base offense from a level 14 to a level 24 because the district court found that Williams had committed two prior felonies that qualified as crimes of violence—auto theft and auto tampering. Both prior felonies were violations of Missouri law.

Our court previously held that auto theft is a crime of violence. United States v. Sprouse, 394 F.3d 578, 581 (8th Cir.2005) (holding that auto theft is a crime of violence for purposes of U.S.S.G. § 2K2.1(a)(2) and a violent felony for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) and (e)(2)(B)); United States v. Sun Bear, 307 F.3d 747, 753 (8th Cir.2002) (holding that attempted auto theft is a crime of violence for purposes of the career offender enhancement of U.S.S.G. § 4B1.1). Following Sun Bear, our court also held auto tampering to be a violent felony. United States v. Johnson, 417 F.3d 990, 997 (8th Cir.2005) (holding auto tampering to be a violent felony for purposes of 18 U.S.C. § 924(e) and a crime of violence for purposes of U.S.S.G. § 4B1.1); United States v. Counts, 498 F.3d 802, 804-05 (8th Cir.2007) (applying Johnson to hold auto tampering to be a violent felony for purposes of 18 U.S.C. § 924(e)), cert. granted and judgment vacated, ___ U.S. ___, 128 S.Ct. 2049, 170 L.Ed.2d 790 (2008) (remanding to our court for further consideration in light of Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)). The district court applied our controlling precedent to determine the advisory Guidelines range.

Subsequent to oral argument in this case, the United States Supreme Court decided Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), which held that driving under the influence of alcohol (DUI) is not a violent felony for purposes of the Armed Career Criminal Act. 128 S.Ct. at 1583. Our panel, therefore, sought and received supplemental briefing on Begay's effect on our precedent dealing with auto tampering and auto theft. We now conclude that Begay, as intervening Supreme Court authority, compels us to disregard Sun Bear and its progeny to the extent that the Supreme Court uses reasoning that conflicts with the rationale that our court used to determine that auto theft and auto tampering were crimes of violence.

II. Analysis

We first note that we are bound by cases interpreting whether an offense is a crime of violence under the Guidelines as well as cases interpreting whether an offense is a violent felony under the Armed Career Criminal Act. United States v. Johnson, 417 F.3d at 996 ("The statutory definition of `violent felony' is viewed as interchangeable with the guidelines definition of `crime of violence.'"). Section 2K2.1 of the Guidelines prescribes an offense level of 24 for a person convicted of being a felon in possession of a firearm after having been convicted of two or more crimes of violence. Section 4B1.1 provides for an enhanced offense level for certain crimes if the defendant has two predicate felonies for qualifying drug offenses or crimes of violence. The commentary to both § 2K2.1 and § 4B1.1 refer to § 4B1.2(a), which provides a definition of a "crime of violence" that is virtually identical to the definition of a "violent felony" in the Armed Career Criminal Act. Compare U.S.S.G. § 4B1.2(a) with 18 U.S.C. § 924(e)(2)(B).

The present case involves the term "crime of violence" whereas the Supreme Court in Begay interpreted the term "violent felony." We have never recognized a distinction between the two. See Sprouse, 394 F.3d at 580 ("Because the definitions of crime of violence and violent felony are identical, the same analysis applies in determining whether [the defendant's] convictions fall within the conduct defined."). In fact, in Sprouse, we held that pursuant to the prior authority of Sun Bear, auto theft is a violent felony for purposes of 18 U.S.C. § 924(e), just as it was a crime of violence for purposes of the Guidelines. Id. at 580-81; see also United States v. Walker, 494 F.3d 688, 693 (8th Cir.2007) (noting that 18 U.S.C. § 924(e)(2)(B)(ii) and U.S.S.G. § 4B1.2 are "identically worded"), cert. granted and judgment vacated, ___ U.S. ___, 128 S.Ct. 2050, 170 L.Ed.2d 790 (2008) (remanding to our court for further consideration in light of Begay, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)); United States v. Spudich, 443 F.3d 986, 987 (8th Cir.2006) ("The definition of `crime of violence' for purposes of U.S.S.G. § 2K2.1(a)(2) is nearly identical to the definition of `violent felony' considered in McCall, and we generally apply the same analysis to both terms."); United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir.2002).

In construing whether auto theft and auto tampering are crimes of violence, we look at what is commonly referred to as the "otherwise" clause of 18 U.S.C. § 924(e)(2)(B)(ii) or U.S.S.G. § 4B1.2(a)(2). The "otherwise" clause provides enhanced penalties for defendants with predicate felonies for certain listed example crimes— "burglary, arson, or extortion," and crimes "involv[ing][the] use of explosives"—as well as crimes that "otherwise involve[] conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). The "otherwise" clause is the section of the Armed Career Criminal Act analyzed in Begay. 128 S.Ct. at 1581.

Begay held that for a crime to fall within the "otherwise" clause it must pose a similar degree of risk of physical injury as the example crimes and be similar in kind to the example crimes. 128 S.Ct. at 1585-86. Therefore, even if a crime presents the same degree of risk of physical injury as the example crimes, it is not covered by the "otherwise" clause unless it is also similar in kind to the example crimes. Id. at 1586. For a crime to be similar in kind to the example crimes, it should typically involve "purposeful, violent, and aggressive conduct." Id. For example, although DUI may be as dangerous as the example crimes, it is too different in kind to be covered by the "otherwise" clause. Id. at 1586-87 (noting that the example crimes should be read as limiting the crimes covered by the "otherwise" clause).

Begay did not take issue with the Tenth Circuit's conclusion that DUI poses a significant threat of injury to another. Begay, 128 S.Ct. at 1584 (noting that even if DUI is as dangerous as the example crimes, DUI is too unlike the example crimes to conclude that Congress intended it to be covered by the "otherwise" clause). Likewise, Begay does not impact our court's earlier findings that auto theft and auto tampering pose a similar degree of risk of physical injury as the example crimes. We now recognize, however, that the degree of risk of physical injury is only half of the analysis. Sun Bear and its progeny did not consider whether auto theft and auto tampering were similar in kind to the example crimes. Instead, our previous analyses focused solely on the degree of risk of physical injury associated with a crime. See Counts, 498 F.3d at 804 (holding that the conduct required for auto tampering was a violent felony because it involved a degree of risk similar to auto theft); Sprouse, 394 F.3d at 580-81 (examining the likely consequences of auto theft); Sun Bear, 307 F.3d at 752-53 (examining the likely consequences of attempted auto theft). Begay, therefore, requires that our analysis focus on whether auto theft and auto tampering are similar in kind to the example crimes.

To determine whether auto theft is similar in kind to the example crimes, we consider whether auto theft involves conduct that is similarly "purposeful, violent, and aggressive" when compared to the conduct involved in auto theft's closest analogue among the example crimes.¹ See James v. United States, ___ U.S. ___, 127 S.Ct. 1586, 1597, 167 L.Ed.2d 532 (2007) (analyzing whether a crime falls within the "otherwise" clause by analogizing to the most closely related example crime). We also recognize that Begay emphasized that the "otherwise" clause should only encompass crimes "show[ing] 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.

As relevant to this case, a person commits the crime of auto theft under Missouri law if he appropriates the property of another with the purpose of depriving the owner of the property, either without the owner's consent or by means of deceit or coercion. See Mo.Rev.Stat. § 570.030. We consider the generic elements of the offense rather than the specific details of how Williams committed the crime. See Begay, 128 S.Ct. at 1584. The statutory definition, however, sets forth three distinct offenses with different elements: auto theft without consent, auto theft by deceit, and auto theft by coercion. See, e.g., Mo. Approved...