U.S. v. Gordon

• Decision Date: 24 February 2009
• Docket Number: No. 08-1734.,08-1734.
• Citation: 557 F.3d 623
• Parties: UNITED STATES of America, Appellee, v. George L. GORDON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

557 F.3d 623

UNITED STATES of America, Appellee, v. George L. GORDON, Appellant.

No. 08-1734.

United States Court of Appeals, Eighth Circuit.

Submitted: October 14, 2008.

Filed: February 24, 2009.

Susan M. Hunt, Kansas City, MO, argued, for appellant.

Stefan C. Hughes, Asst. U.S. Atty., Kansas City, MO, argued (John F. Wood, U.S. Atty., on the brief), for appellee.

Before MELLOY, BEAM, and GRUENDER, Circuit Judges.

BEAM, Circuit Judge.

George L. Gordon appeals his sentence after pleading guilty to possessing a firearm as a convicted felon. The district court imposed a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), after finding Gordon had three prior convictions for "violent felon[ies]." Because we conclude Gordon's 2004 Missouri conviction for endangering the welfare of a child in the first degree is not an ACCA predicate offense, we vacate his sentence and remand for resentencing.

I. BACKGROUND

In November 2006, Kansas City, Missouri, police officers arrested Gordon on an outstanding warrant during the course of a traffic stop. After a search of Gordon's vehicle incident to his arrest revealed a .357 caliber revolver, Gordon pleaded guilty to the felon-in-possession charge underlying the instant appeal. The presentence investigation report (PSR) revealed several prior felony convictions, including a 1996 Missouri conviction for second-degree robbery and armed criminal action; a 2004 Missouri conviction for endangering the welfare of a child in the first degree; and a 2006 Missouri conviction for domestic assault. The PSR deemed those three offenses "violent felon[ies]" within the meaning of the ACCA, and consequently found Gordon was subject to a fifteen-year mandatory minimum sentence.

At sentencing, Gordon argued his child endangerment conviction was not a "violent felony" under the ACCA. Thus, Gordon asserted he had only two convictions for ACCA predicate offenses and was not subject to the fifteen-year mandatory minimum. In response, the government noted Gordon's conviction arose out of his relationship with a young girl, likened his offense to statutory rape and drew the district court's attention to United States v. Mincks, 409 F.3d 898, 900 (8th Cir.2005), in which we found statutory rape categorically qualifies as a violent felony under the ACCA. Although the government recognized child endangerment and statutory rape are distinct offenses, it urged the court to follow Mincks because of the specific facts underlying Gordon's child endangerment conviction. The district court sided with the government, overruled Gordon's objection, and sentenced Gordon to 180 months in prison and three years of supervised release. This appeal followed.

II. DISCUSSION

The ACCA mandates a fifteen-year minimum prison term for those felons who unlawfully possess firearms following three or more convictions for certain drug offenses or violent felonies committed on occasions distinct from one another. 18 U.S.C. § 924(e)(1). For these purposes, a "violent felony" includes any offense punishable by imprisonment for a term exceeding one year which "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. § 924(e)(2)(B)(ii) (emphasis added). The only issue before us is whether Gordon's prior offense qualifies as a "violent felony" within the meaning of the italicized language-the ACCA's so-called "otherwise" clause. See United States v. Williams, 537 F.3d 969, 972 (8th Cir.2008).¹ We review de novo whether a prior conviction qualifies as an ACCA predicate offense. United States v. Van, 543 F.3d 963, 966 (8th Cir.2008).

Until recently, our decisions interpreting the "otherwise" clause focused on whether the risk of physical injury associated with an unlisted crime was similar in degree to the risks of injury associated with the example crimes: burglary, arson, extortion and offenses involving the use of explosives. Williams, 537 F.3d at 972 (citing various prior cases). See also, e.g., Mincks, 409 F.3d at 900. As the Supreme Court recently clarified, however, the "otherwise" clause is not a catchall provision intended to reach every potentially dangerous prior offense. Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 1584-85, 170 L.Ed.2d 490 (2008). Rather, the clause covers only those crimes "roughly similar, in kind as well as in degree of risk posed, to the examples themselves." Id. at 1585 (emphasis added). The Begay Court elucidated the similar-in-kind requirement by noting the examples "all typically involve purposeful, violent, and aggressive conduct." Id. at 1586 (internal quotations omitted). Such conduct, the Court concluded, "makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim." Id. In other words, prior offenses typically involving such conduct are "associated with a likelihood of future violent, aggressive, and purposeful `armed career criminal' behavior" in a way that other more passive, but no less potentially injurious prior offenses are not. Id. at 1588. The Begay Court applied that rationale to conclude New Mexico's driving under the influence of alcohol (DUI) offense was not covered by the "otherwise" clause because DUI, although dangerous, is a strict liability offense typically lacking the purposeful, violent and aggressive conduct embodied by the example crimes and associated with an increased likelihood the offender will commit future gun crimes. Id. at 1587-88. To determine whether Gordon's prior offense is covered by the "otherwise" clause then, we must consider whether it poses a similar degree of risk of physical injury and whether it typically involves conduct that is similarly purposeful, violent and aggressive when compared to the conduct involved in its closest analogue among the example crimes. Williams, 537 F.3d at 972.

In performing that analysis, we focus on the generic elements of the offense and not on the specific facts underlying Gordon's conviction. Begay, 128 S.Ct. at 1584 (citing the "categorical approach" adopted in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Gordon was convicted of violating Missouri section 568.045, which criminalizes various knowing actions that endanger a child's welfare.² Because the statute can be violated in a number of ways, "we look to the charging papers for the limited purpose of determining the specific elements for which [Gordon] was convicted." United States v. Livingston, 442 F.3d 1082, 1084 (8th Cir.2006). Here, the criminal information to which Gordon pleaded guilty alleges, in relevant part, that he endangered a child's welfare by "knowingly act[ing] in a manner that created a substantial risk to the body and health of . . . a child less than seventeen years old." Appellant's Add. at 6. This language tracks section 568.045.1(1), which makes it unlawful to "knowingly act[] in a manner that creates a substantial risk to the life, body, or health of a child less than seventeen years old." Mo.Rev.Stat. Ann. § 568.045.1(1) (2004). Our task is to determine whether that offense (1) "involves conduct that presents a serious potential risk of physical injury to another," 18 U.S.C. § 924(e)(2)(B)(ii), and (2) "typically involve[s] purposeful, violent, and aggressive conduct." Begay, 128 S.Ct. at 1586 (internal quotations omitted). If both requirements are met, Gordon's prior offense may qualify as a "violent felony" under the ACCA's "otherwise" clause. Id. at 1585.

Because section 568.045.1(1) requires that a person act so as to create a substantial risk to a child's life, body, or health, we will assume the first requirement is satisfied. That is, we assume Gordon's prior offense ordinarily "involves conduct that presents a serious potential risk of physical injury to another," 18 U.S.C. § 924(e)(2)(B)(ii), and that such risk is comparable in degree to that associated with any one of the example crimes. See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1594, 1597, 167 L.Ed.2d 532 (2007) (concluding an unlisted crime involves the requisite level of risk if "the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another").³ We conclude, however, that the second requirement for inclusion in the "otherwise" clause is not met. Gordon's prior offense is not similar in kind to burglary, arson, extortion or offenses involving the use of explosives because it does not typically involve the three types of conduct characteristic of those crimes. Specifically, nothing in the statutory definition of Gordon's prior offense suggests it "typically involve[s]" violent and aggressive conduct. Begay, 128 S.Ct. at 1586. Rather, a person can create a substantial risk to a child's life, body or health through knowing actions that are neither violent nor aggressive, and this subsection is routinely applied to very passive behavior. E.g., State v. Riggs, 2 S.W.3d 867, 868, 872-73 (Mo.Ct.App.1999) (affirming a mother's conviction under the same statutory language, after the accidental drowning death of her young son, for leaving him unsupervised near an unfenced pond); State v. Gaver, 944 S.W.2d 273, 276-78 (Mo.Ct. App.1997) (affirming a mother's conviction under identical language in an earlier version of this statute for repeatedly leaving her sons alone with her physically abusive husband, despite visible injuries suggesting he was harming them in her absence). As such, we cannot say Gordon's child endangerment conviction indicates a proclivity for violence and aggression in the same way that, for example, a prior burglary conviction might. In other words, Gordon's prior offense is not covered by the ACCA's "otherwise" clause because it is not the kind of prior offense "show[ing] an increased likelihood that the...