U.S. v. Rivers

• Decision Date: 25 February 2010
• Docket Number: No. 09-4336.,09-4336.
• Citation: 595 F.3d 558
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Deangelo Sylvester RIVERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

595 F.3d 558

UNITED STATES of America, Plaintiff-Appellee, v. Deangelo Sylvester RIVERS, Defendant-Appellant.

No. 09-4336.

United States Court of Appeals, Fourth Circuit.

Argued: December 2, 2009.

Decided: February 25, 2010.

ARGUED:

Mary Gordon Baker, Office of the Federal Public Defender, Charleston, South Carolina, for Appellant. Robert Frank Daley, Jr., Office of the United States Attorney, Columbia, South Carolina, for Appellee.

ON BRIEF:

W. Walter Wilkins, United States Attorney, Columbia, South Carolina, Eric J. Klumb, Assistant United States Attorney, Office of

the United States attorney, Charleston, South Carolina, for Appellee.

Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.

Vacated and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge WILKINSON and Judge DUNCAN joined.

OPINION

GREGORY, Circuit Judge:

The Armed Career Criminal Act ("ACCA") imposes a fifteen-year mandatory minimum sentence on felons convicted of firearm possession where the felon has "three previous convictions ... for a violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1). Today, we again consider whether a conviction under South Carolina law for failure to stop for a blue light, S.C.Code Ann. § 56-5-750(A), constitutes a "violent felony" under the ACCA. In United States v. Roseboro, 551 F.3d 226, 240 (4th Cir.2009), we held that only under some circumstances does a failure to stop for a blue light qualify as a predicate offense under the ACCA. Based on the Supreme Court's subsequent decision in Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), we hold that under no circumstance is a violation of South Carolina's blue light statute a violent felony under the ACCA.

I.

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

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

II.

In reviewing a lower court's determination that a defendant is an armed career criminal as defined by the ACCA, we review factual findings for clear error and legal conclusions de novo. United States v. Wardrick, 350 F.3d 446, 451 (4th Cir.2003) (citing United States v. Brandon, 247 F.3d 186, 188 (4th Cir.2001)). Because this is the third time in seven years that this Court has considered the question of whether a violation of South Carolina's blue light statute constitutes a violent felony, we review the history of our analysis in light of further developments in Supreme Court precedent.

Federal law bars previously convicted felons from possessing a firearm. 18 U.S.C. § 922(g)(1). Ordinarily, felons in possession receive a prison term of up to ten years. § 924(a)(2). The ACCA imposes a more stringent fifteen-year mandatory-minimum term of imprisonment on defendants who have three prior convictions for "a violent felony or a serious drug offense." § 924(e)(1). The ACCA defines "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

(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.

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

In the absence of mitigating circumstances, it is unlawful for a motor vehicle driver, while driving on a road, street, or highway of the State, to fail to stop when signaled by a law enforcement vehicle by means of a siren or flashing light. An attempt to increase the speed of a vehicle or in other manner avoid the pursuing law enforcement vehicle when signaled by a siren or flashing light is prima facie evidence of a violation of this section. Failure to see the flashing light or hear the siren does not excuse a failure to stop when the distance between the vehicles and other road conditions are such that it would be reasonable for a driver to hear or see the signals from the law enforcement vehicle.

S.C.Code Ann. § 56-5-750(A).

This statute was last addressed by the Court in Roseboro, where we held that only a conviction predicated on intentionally failing to stop when signaled qualifies as a predicate offense under the ACCA. 551 F.3d at 240. In so holding, we found the Supreme Court's decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) overruled our prior holding in United States v. James, 337 F.3d 387 (4th Cir.2003).

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

Applying the distinction drawn in Begay, between the purposeful behavior required by § 924(e)(2)(B)(ii), and the unintentional conduct captured by New Mexico's DUI statute, the Roseboro panel turned to South Carolina's statute. A successful prosecution of the South Carolina blue light statute must prove the following elements:

(1) that the defendant was driving a motor vehicle; (2) that he was driving it on a road, street or highway of this State; (3) that he was signaled to stop by a law-enforcement vehicle by means of a siren or flashing light; and (4) that he did not stop.

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

A sentencing court may use the modified categorical approach when "the statutory provision at issue defines multiple crimes," and may consult additional materials, beyond the fact of conviction to determine the crime at issue. Id. at 230 (citing Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)) (emphasis added). In justifying application of the modified approach to South Carolina's statute, the Roseboro panel observed that it was "categorically overbroad ... allowing conviction for both intentional and unintentional conduct." Id. at 240. The Court then divided the conduct prohibited by the blue light statute into two categories: intentional and unintentional behavior. In light of this division, the panel held that a sentencing court, after consulting the appropriate documents² to identify the type of conduct underlying the conviction, could apply the ACCA's enhancement provision to intentional violations of South Carolina's statute.

III.

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

A.

The Supreme Court made clear in Chambers that courts must apply the...