U.S. v. Livingston

• Decision Date: 05 April 2006
• Docket Number: No. 04-3825.,04-3825.
• Citation: 442 F.3d 1082
• Parties: UNITED STATES of America, Appellee, v. Christopher D. LIVINGSTON, also known as John Thurman, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

442 F.3d 1082

UNITED STATES of America, Appellee, v. Christopher D. LIVINGSTON, also known as John Thurman, Appellant.

No. 04-3825.

United States Court of Appeals, Eighth Circuit.

Submitted: October 12, 2005.

Filed: April 5, 2006.

J. Blake Hendrix, argued, Little Rock, AR, for appellant.

Edward O. Walker, argued, Asst. U.S. Atty., Little Rock, AR, for appellee.

Before RILEY, HANSEN, and COLLOTON, Circuit Judges.

HANSEN, Circuit Judge.

Christopher D. Livingston appeals the district court's application of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e) (2000), to his sentence for Unlawful Possession of a Firearm by a Convicted Felon and Aiding and Abetting the Receipt of Stolen Firearms, 18 U.S.C. §§ 922(g), 922(j), & 2. Livingston argues that his prior state court conviction for breaking or entering a vehicle under Arkansas law is not a violent felony for purposes of the ACCA. We agree, vacate his sentence, and remand for resentencing.

Livingston pleaded guilty to Unlawful Possession of a Firearm by a Convicted Felon and Aiding and Abetting the Receipt of Stolen Firearms. The ACCA sets a mandatory minimum sentence of fifteen years for any conviction under 18 U.S.C. § 922(g) if the defendant "has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony¹ or a serious drug offense." 18 U.S.C. § 924(e)(1). The district court applied the ACCA to Livingston's sentence based on three prior state convictions for breaking or entering a vehicle, first degree battery, and attempted residential burglary. The district court then calculated a Guidelines sentencing range of 180 to 188 months, the bottom of which was based on application of the fifteen-year statutory mandatory minimum, and sentenced Livingston to a 180-month sentence.² Livingston challenges the district court's characterization of his prior conviction for breaking or entering a vehicle as a violent felony for purposes of the ACCA.

We review de novo the legal issue of whether Livingston's prior conviction was a violent felony for purposes of the ACCA. United States v. Johnson, 417 F.3d 990, 995 (8th Cir.2005). Livingston argues that breaking and entering a vehicle is not included in the offense of burglary, the first enumerated crime listed in § 924(e)(2)(B)(ii), while the government focuses on the "otherwise involves" clause at the end of § 924(e)(2)(B)(ii). We agree with Livingston that breaking and entering a vehicle is not included within the definition of burglary as used in § 924(e)(2)(B). See Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1257, 161 L.Ed.2d 205 (2005) ("The [ACCA] makes burglary a violent felony only if committed in a building or enclosed space (`generic burglary'), not in a boat or motor vehicle."); Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (limiting § 924(e) burglary to generic burglary of a building or other structure, noting that some state statutes provide broader definitions that include burglary of automobiles or vending machines). The Supreme Court left open the possibility that crimes that do not fit within the generic definition of burglary may still fit within the "otherwise involves" definition of a violent felony. Taylor, 495 U.S. at 600 n. 9, 110 S.Ct. 2143. We turn then to the issue of whether breaking and entering a vehicle in violation of Arkansas law "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii).

"[T]o determine whether a prior conviction was a violent felony within the meaning of the `otherwise involves' provision in § 924(e)(2)(B)(ii), the sentencing court must first determine whether the elements of that prior crime involved or described conduct that `necessarily entails a serious potential risk of physical injury.'" United States v. McCall, 439 F.3d 967, 970 (8th Cir.2006) (en banc) (quoting United States v. Montgomery, 402 F.3d 482, 488 (5th Cir.2005) (emphasis added)). We apply Taylor's categorical approach to our inquiry, focusing only on the elements of the offense rather than the underlying facts of Livingston's conviction. Id.

Livingston was convicted of breaking or entering in violation of Arkansas Code § 5-39-202, which criminalizes the breaking or entering of a variety of items for the purpose of committing a theft or felony. Because the statute of conviction criminalizes the breaking or entering of various things, including "any building, structure, vehicle, vault, safe, cash register, money vending machine," or similar containers, § 5-39-202(a), we look to the charging papers for the limited purpose of determining the specific elements for which Livingston was convicted. See Taylor, 495 U.S. at 602, 110 S.Ct. 2143; McCall, 439 F.3d at *973-75 (extending Taylor's use of the facts as stated in the charging papers in applying the categorical approach for defining burglary to determining whether a prior conviction satisfied the "otherwise involves" prong of § 924(e)(2)(B) and noting that fact recitals listed in a PSR that are attributable to the charging papers and not objected to by the defendant are sufficient to establish the charged conduct). According to the presentence report (PSR), the charging instrument in Livingston's breaking and entering conviction, charged that "on the 28th day of August 1983, for the purpose of committing a theft, [Livingston] did, enter or break into a vehicle." (PSR at 4, ¶ 29.) We must therefore decide whether the act of breaking or entering a vehicle for the purpose of committing a theft necessarily "involves conduct that presents a serious potential risk of physical injury to another." We conclude that it does not.

The government argues that our prior case of United States v. Sun Bear, 307 F.3d 747 (8th Cir.2002), cert. denied, 539 U.S. 916, 123 S.Ct. 2275, 156 L.Ed.2d 133 (2003), is controlling here and that we are bound by it to conclude that breaking and entering a vehicle in violation of Arkansas Code § 5-39-202 is a violent felony. In Sun Bear, we held that an attempted theft of an operable vehicle in violation of section 76-6-404 of the Utah Code was a "crime of violence" for purposes of the U.S. Sentencing Guidelines Manual (USSG) § 4B1.2(a)(2)³ under its "otherwise involves" clause, which is identical to the "otherwise involves" clause contained in § 924(e)(2)(B)(ii). 307 F.3d at 752-53. See also United States v. Sprouse, 394 F.3d 578, 581 (8th Cir.2005) (relying on Sun Bear to hold that a felony conviction for motor vehicle theft is a violent felony under § 924(e)).

In Sun Bear, we evaluated not only the risks entailed by the crime itself, but also the likely consequences of the crime. 307 F.3d at 752. After reviewing our precedents holding that commercial burglary and walkaway escapes are crimes of violence under the "otherwise involves" clause of USSG § 4B1.2(a), we concluded that vehicle theft "presents a likelihood of confrontation as great, if not greater, than burglary of commercial property, and it adds many of the dangerous elements of escape." Id. We noted that the crime "begins when a thief enters and appropriates a vehicle," and that "[o]nce the thief drives away with the vehicle, he is unlawfully in possession of a potentially deadly or dangerous weapon." Id. (emphasis added). Sun Bear is a case close to, if not sitting on, the line that delineates the farthest reaches of what we are willing to call a violent felony. Indeed, other circuits have determined that automobile theft is not a crime of violence, with whom we parted ways in Sun Bear. See, e.g., United States v. Charles, 301 F.3d 309, 314 (5th Cir.2002) (en banc) (holding that a Texas conviction for motor vehicle theft is not a crime of violence for purposes of § 4B1.2 of the Guidelines); United States v. Crowell, 997 F.2d 146, 149 (6th Cir.1993) (holding that aggravated motor vehicle theft under Colorado law was not a crime of violence under the Guidelines). We must decide if breaking and entering a vehicle for the purpose of committing a theft is sufficiently akin to automobile theft that we are bound by Sun Bear, or if it is different enough that we can draw the violent felony line between theft of a vehicle and breaking or entering a vehicle.

We start by determining whether the en banc decision in McCall affects the precedent set by Sun Bear. In McCall, the en banc court held "that, by its nature, a felony conviction for driving while intoxicated presents a serious potential risk of physical injury to another and is therefore a violent felony under the `otherwise involves' provision in § 924(e)(2)(B)(ii)." McCall, 439 F.3d at *973. The court remanded the case, however, because the Missouri statute also made criminal the operation of a motor vehicle while intoxicated, which the Missouri courts have construed to include "merely causing the vehicle to function by starting its engine." Id. at *973. The court noted that there were scenarios in which operating a motor vehicle while intoxicated would not necessarily present a serious risk of physical injury, for example, the inebriated car owner who chooses to sleep off his drunken state in his car, but turns on the engine to keep warm. Id. Without the charging papers from the two prior DWI offenses, the court could not determine whether McCall was charged with driving or merely operating a vehicle while intoxicated.

While physical injury need not be an element of the underlying offense, "the inherent potential for harm must be present, if not in every violation, at least in a substantial portion of the circumstances made criminal by the statute." Id. at *972. In other words, the criminal conduct contemplated by the offense must present "the `inherent potential for harm to persons.'" Id. (quoting Taylor, 495 U.S. at 588, 110 S.Ct. 2143). The McCall court noted that driving in and of itself creates a risk of physical injury, but determined that that...