United States v. Vanhook

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0095p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 09-5778

v.

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Defendant-Appellant. -

CHARLES VANHOOK,

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Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 06-20021-001—J. Daniel Breen, District Judge.

Argued: October 13, 2010

Decided and Filed: April 18, 2011

Before: BATCHELDER, Chief Judge; KEITH and ROGERS, Circuit Judges.

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COUNSEL

ARGUED: Edwin A. Perry, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Memphis, Tennessee, for Appellant. Jennifer Lawrence Webber, ASSISTANT UNITED

STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF: Edwin A.

Perry, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for

Appellant. Jennifer Lawrence Webber, ASSISTANT UNITED STATES ATTORNEY,

Memphis, Tennessee, for Appellee.

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OPINION

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KEITH, Circuit Judge. This case arises out of defendant Charles Vanhook's

classification as an "armed career criminal" under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e). At issue before the Court today is Vanhook’s appeal of

the district court’s conclusion that his prior conviction for facilitation of the burglary of

1

No. 09-5778 United States v. Vanhook Page 2

a building in violation of TENN. CODE ANN. §§ 39-11-403 and 39-14-402(a) constitutes

a violent felony for the purposes of the ACCA. For the reasons discussed below, we find

that facilitation of the burglary of a building under Tennessee law is not categorically a

violent felony. Accordingly, we VACATE the sentence imposed by the district court

and REMAND the case to the district court for further proceedings consistent with our

opinion here.

BACKGROUND

On August 3, 2006, defendant Charles Vanhook pled guilty to having been a

convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g).

After Vanhook entered his plea, the probation office for the Western District of

Tennessee completed a pre-sentence investigation report (“PSR”) identifying the

applicable sentencing guidelines for his offense. The PSR concluded that Vanhook

qualified as an “armed career criminal” as a result of having committed three violent

felonies and, therefore, should be sentenced accordingly. The report identified the three

qualifying offenses as two prior convictions for the sale of cocaine in January, 1990 and

a conviction for facilitation of burglary in July, 1998. After taking Vanhook’s status as

an armed career criminal into account, the report concluded that the applicable

sentencing range for him was between 188 and 235 months of imprisonment.

On October 27, 2006, Vanhook filed an objection to the report’s conclusion that

he qualified as an armed career criminal. Vanhook specifically disputed the report’s

finding that his prior conviction for facilitation of the burglary of a building constituted

a violent felony for the ACCA’s purposes.

After hearing arguments from both parties, the district court overruled Vanhook’s

objection, concluded he was an armed career criminal, and sentenced him to 180 months

of imprisonment.

On appeal, a separate panel of this Court affirmed the district court’s holding that

facilitation of burglary constituted a violent felony for purposes of the ACCA. United

States v. Vanhook, 510 F.3d 569 (6th Cir. 2007), vacated 129 S. Ct. 993 (2009). The

No. 09-5778 United States v. Vanhook Page 3

panel’s decision rested in large part on the law at the time, which did not consider the

defendant’s state of mind when he committed the allegedly qualifying offenses. The

panel specifically relied on this Court’s prior decision in United States v. Sawyers, 409

F.3d 732 (6th Cir. 2005), in which we found that an individual could have committed a

violent felony even if he only “facilitated” the ultimate felonious act. Vanhook, 510 F.3d

at 574-77.

Vanhook subsequently filed a petition for certiorari with the United States

Supreme Court. However, before the court could review the petition, the Supreme Court

issued its decisions in United States v. Begay, 553 U.S. 137 (2008) and United States v.

Chambers, 555 U.S. 122 (2009), which substantially altered the legal test courts must

use when determining whether a prior state court conviction constitutes a violent felony

for the ACCA’s purposes. In light of its decisions in Begay and Chambers, the Supreme

Court vacated Vanhook’s sentence and remanded the case to this Court. Vanhook, 129

S. Ct. 993 (2009). We, in turn, remanded the case to the Western District of Tennessee

for re-sentencing in accordance with the guidelines set out in Begay and Chambers.

Vanhook again filed a position paper objecting to the report’s finding that he was

an armed career criminal. On June 23, 2009, the district court, upon consideration of the

issue post-Begay, again found that facilitation of the burglary of a building was a violent

felony and, accordingly, concluded that Vanhook qualified as an armed career criminal.

Beyond stating that facilitation of the burglary of a building was similar to the crimes

listed in the ACCA’s “otherwise” clause, 18 U.S.C. § 924(e)(2)(B), the court provided

no further clarification as to why the crime constitutes a violent felony.

On June 30, 2009, Vanhook timely appealed the district court’s conclusion.

No. 09-5778 United States v. Vanhook Page 4

STANDARD OF REVIEW

We review de novo a district court's determination that a defendant should be

sentenced as an armed career criminal. Sawyers, 409 F.3d at 736.

ANALYSIS

The ACCA provides that "a person who violates [§] 922(g) of this title and has

three previous convictions by any court . . . for a violent felony or a serious drug offense,

or both, committed on occasions different from one another, . . . shall be fined under this

title and imprisoned not less than fifteen years." 18 U.S.C. § 924(e)(1). Section

924(e)(2)(B), in turn, defines a "violent felony" as any crime punishable by

imprisonment of more than 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).

In determining whether a particular offense qualifies as a violent felony, courts

must use the “categorical approach.” That is, they must not consider the individual facts

and circumstances of the offense, but rather must only look to the statutory terms of the

alleged felony. United States v. Bartee, 529 F.3d 357, 359 (6th Cir. 2008); see also

James v. United States, 550 U.S. 192, 202 (2007).1 If, however, the statutory definition

is ambiguous – it covers some actions which would constitute non-violent felonies and

other actions that would not constitute violent felonies – the court may expand its inquiry

beyond the statute’s text. In such cases, the court may additionally consider the

“charging document, written plea agreement, transcript of plea colloquy, and any explicit

factual finding by the trial judge to which the defendant assented” to see if they

“necessarily” establish the nature of the prior offense. United States v. Foreman, 436

F.3d 638, 641 (6th Cir. 2006); see also Shepard v. United States, 544 U.S. 13, 26 (2005).

1

This approach “avoid[s] ‘the practical difficulties and potential unfairness’ of permitting a

sentencing court to relitigate facts and delve into the details of a prior conviction.” Bartee, 529 F.3d at 359

(quoting United States v. Armstead, 467 F.3d 943, 947 (6th Cir. 2006)).

No. 09-5778 United States v. Vanhook Page 5

The parties agree that the first clause of § 924(e)(2)(B) is not applicable here; the

Tennessee offense of facilitation of the burglary of a building does not have as one of

its elements the use, attempted use, or threatened use of physical force against another.

Rather, the dispute in this case centers upon whether the ACCA’s second clause – the

“otherwise” clause – covers the offense at issue.

As noted, the Sixth Circuit initially considered Vanhook’s appeal of his

classification as an armed career criminal prior to the Supreme Court’s decision in

Begay.2 Under the pre-Begay framework, the only relevant question was whether the

offense posed a serious risk of physical injury to others. James, 550 U.S. at 207-08.

Given the limited nature of the inquiry, this and other courts repeatedly found a broad

range of offenses, including some different in kind from the offenses specified in the

ACCA, to be violent felonies. See e.g., United States v. Gibbs, 626 F.3d 344, 353-54

(6th Cir. 2010) (explaining that the Sixth Circuit no longer adheres to its past rulings

which generally treated "walkaway" escape offenses as crimes of violence).

In Begay, the Supreme Court, recognizing that certain crimes that posed a serious

risk of violence were entirely unlike the crimes Congress had listed in the ACCA, set out

a revised framework for determining whether an offense qualifies as a violent felony.

Begay, 553 U.S. at 143. After Begay, whether an offense presents a serious risk of

physical injury to others is only the initial inquiry. For a crime to qualify as a violent

felony, it must also be similar “in kind as well as in degree of risk posed” to the crimes

Congress specifically stated that the otherwise clause applied to. Id. That is, the

qualifying crime must be “purposeful, violent, and aggressive.” Id. at 144-45.

2

Generally, "[a] panel of this Court cannot overrule the decision of another panel." Darrah v.

City of Oak Park, 255 F.3d 301, 309 (6th Cir. 2001)). However, “this case presents the unique situation

in which an inconsistent decision of the United States Supreme Court requires modification of the [prior]

decision." Id.

No. 09-5778 United States v. Vanhook Page 6

I. Serious Risk of Harm

Tennessee law punishes three types of burglary: burglary of a habitation

(aggravated burglary), burglary of a building, and burglary of a vehicle. TENN. CODE

ANN. §§ 39-14-402, 403. A person is criminally liable for the burglary of a building if

he, "without the effective consent of the property owner, [e]nters a building other than

a habitation (or any portion thereof) not open to the public, with intent to commit a

felony." § 39-14-402(a)(1). Under Tennessee law, a "person is criminally responsible

for the facilitation of a felony, if, knowing that another intends to commit a specific

felony, but without the intent required for criminal responsibility [for that offense] . . .

the person knowingly furnishes substantial assistance in commission of the felony."

§ 39-11-403(a).

As this Court noted when initially considering Vanhook’s appeal: “Facilitators

in Tennessee . . . are not the legal equivalent of accessories before the fact or aiders and

abetters, the latter categories being treated the same as principals under the law.”

Vanhook, 510 F.3d at 574; compare § 39-11-401(a) and § 39-11-402(2) with

§ 39-11-403(a). Rather, "facilitation of the commission of a felony is an offense of the

class next below the felony facilitated by the person so charged." § 39-11-403(b); see

also State v. Fowler, 23 S.W.3d 285, 288 (Tenn. 2000) ("[F]acilitation is a

lesser-included offense when a defendant is charged with criminal responsibility for the

conduct of another.").

As the statutory definition of facilitation of the burglary of a building is clear and

unambiguous, see TENN. CODE ANN. § 39-11-403 (facilitation of a felony), and

§ 39-14-402(a)(1) (burglary of a building), we simply need to examine the relevant

statutory elements in order to determine whether Vanhook's prior conviction constituted

a violent felony under § 924(e)(2)(B)(ii). See Sawyers, 409 F.3d at 736.

Even after Begay, there remains little question that the act of facilitating the

burglary of a building creates a serious risk of violence. As noted, 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 them. The Supreme

No. 09-5778 United States v. Vanhook Page 7

Court did not take issue with the Tenth Circuit’s conclusion, in Begay, that driving under

the influence poses a significant threat of injury to another. Accordingly, Begay does

not impact our court’s earlier holdings that facilitation of burglary poses a risk of

physical injury to another that is similar to the crimes listed.

Furthermore, beyond merely this Court’s precedents we have good reason to

reach the conclusion we do. As the Supreme Court has explained, burglary-related

offenses often involve the serious potential for physical injury. “The fact that an

offender enters a building to commit a crime often creates the possibility of a violent

confrontation between the offender and an occupant, caretaker, or some other person

who comes to investigate.” Taylor v. United States, 495 U.S. 575, 588 (1990).

Vanhook attempts to distinguish facilitation of burglary from other burglary

offenses on the grounds that it requires less criminal culpability than other burglary

offenses. Additionally, Vanhook argues facilitation of burglary is merely a lesser

included offense of burglary. While these certainly are the case, they are not relevant

to the inquiry under the first prong of the test. Regardless of whether facilitation of the

burglary of a building requires less culpability than other burglary offenses or whether

it is a lesser included offense of other crimes, the sole relevant question, under the first

prong, is whether the crime created a serious risk of harm to others. In this case, the

standard is met. By definition, when an individual “facilitates” a burglary, he provides

substantial assistance towards the commission of an act which, as explained, has the

strong potential of ending in a violent result.3

This is not to say that Vanhook does not raise valid points. Rather, arguments

concerning whether the offense for which he was convicted is of the proper nature or

3

We are not saying, however, that in every instance where an individual is guilty of having in

some way assisted or encouraged the commission of another act which likely will have a violent result,

the assistance or encouragement – no matter how minor or unrelated to the violent act – will create a

serious risk of violence. There may be circumstances in which the government may choose to criminalize

assistance or encouragement so minimal that it would have little or no tangible role in the ultimate

occurrence of the violent act. However, we are not faced with such a circumstance here. As noted,

facilitation, by definition, requires that the defendant provided substantial assistance towards the

commission of the ultimately violent offense.

No. 09-5778 United States v. Vanhook Page 8

type to be considered a violent felony are more properly addressed under the second

prong of the test.

II. Similarity to the Enumerated Offenses: Purposeful, Violent, and

Aggressive

A more difficult question is whether facilitation of the burglary of a building is

similar in kind to the offenses listed in the “otherwise” clause of the ACCA; specifically

whether it is “purposeful, violent, and aggressive.” Begay, 553 U.S. at 144-45.

As noted, in Begay, the Supreme Court reversed the Tenth Circuit’s finding that

driving under the influence constitutes a violent felony. Id. at 148. The Court reasoned

that while driving under the influence created a serious risk of physical injury to another,

because it did not require that the defendant have acted with any intent to cause such

injury, it was essentially similar to crimes which imposed strict liability on offenders.

Id. at 145. Such crimes, because they imposed liability on the defendant regardless of

the intent he or she possessed at the time of the crime, were clearly different from the

crimes Congress listed in the ACCA, each of which involved purposeful conduct on the

part of the defendant. Id. at 146. Accordingly, Congress when creating the clause was

not referring to such crimes: “We have no reason to believe that Congress intended to

bring within the statute’s scope these kinds of crimes, far removed as they are from the

deliberate kind of behavior associated with violent criminal use of firearms.” Id. at 147.

Though they were not before the Court, the Supreme Court additionally listed

several other offenses which only require that the defendant have acted recklessly as

examples of crimes not sufficiently purposeful such that the ACCA’s otherwise clause

covers them. See id. at 146 (listing reckless pollution and reckless tampering with

consumer products as crimes not typically committed by armed career criminals). The

Sixth Circuit, among others, has since followed suit finding that several crimes which

only require a mens rea of recklessness or gross negligence do not qualify as violent

felonies under the ACCA. See United States v. McFalls, 592 F.3d 707 (6th Cir. 2010)

(holding that defendant’s conviction under South Carolina’s aggravated assault statute

did not qualify as a crime of violence because it only required that the defendant acted

No. 09-5778 United States v. Vanhook Page 9

recklessly); United States v. Baker, 559 F.3d 443 (6th Cir. 2009) (finding that violation

of Tennessee reckless endangerment statute did not qualify as a crime of violence);

United States v. Johnson, 308 F. App’x. 968 (6th Cir. 2009) (same); United States v.

Culbertson, 389 F. App’x 515, 520 (6th Cir. 2010) (concluding that Michigan

manslaughter with a motor vehicle conviction was not a violent felony because

defendant must only have acted with gross negligence); United States v. Johnson, 376

F. App’x. 205, 207 (3d Cir. 2010) (concluding that "because a Pennsylvania terroristic

threats offense requires a minimum mens rea of recklessness rather than intent, it is not

a ‘crime of violence’ for purposes of § 2L1.2.").4

Meanwhile, courts have continued to find that the ACCA covers aggressive and

violent offenses which require that the defendant have acted intentionally. United States

v. Young, 580 F.3d 373 (6th Cir. 2009) (holding that violation of Michigan fleeing and

eluding statute that required the defendant have acted willfully was a violent felony);

United States v. Sykes, 598 F.3d 334 (7th Cir. 2010) (concluding that conviction under

Indiana’s fleeing and eluding statute was violent felony because the defendant must have

acted knowingly and intentionally); United States v. Noah, No. 09-5756, 2010 U.S. App.

LEXIS 22922 (6th Cir. Nov. 4, 2010) (finding that Tennessee crime which required that

defendant have “unlawfully and intentionally” fled from an officer was a crime of

violence).

Similarly, other circuits that have addressed the issue have found that crimes

which require that the defendant have acted knowingly are sufficiently purposeful to be

considered violent felonies for the ACCA’s purposes. United States v. Crews, 621 F.3d

849 (9th Cir. 2010) (holding that Oregon second degree assault statute requiring that

4

Given the similarity between the ACCA's definition of "violent felony" and the definition of

"crime of violence" contained in the pertinent guideline provision, courts, including this one, have taken

the position that authority interpreting one phrase is generally persuasive when interpreting the other. See,

e.g., United States v. Kinsey, No. 09-5202, 2010 U.S. App. LEXIS 23507, at *7 (6th Cir. Nov. 15, 2010)

(noting that “a ‘violent felony’ under [the] ACCA, . . . is – for these purposes – treated exactly the same

as a ‘crime of violence’ under the Guidelines”); United States v. Sprouse, 394 F.3d 578, 580 (8th Cir.

2005) (“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.”); United

States v. Winter, 22 F.3d 15, 18 n.3 (1st Cir. 1994).

No. 09-5778 United States v. Vanhook Page 10

defendant acted knowingly or intentionally was a crime of violence); United States v.

Dismuke, 593 F.3d 582 (7th Cir. 2010) (concluding that Wisconsin vehicular fleeing

offense that punished knowing conduct was a violent felony); United States v. Hampton,

585 F.3d 1033 (7th Cir. 2009) (holding that Indiana residential entry statute punishing

knowing or intentional conduct is a violent felony); United States v. Johnson, 587 F.3d

203 (3d Cir. 2009) (finding that Pennsylvania simple assault statute that criminalized

knowing actions was a crime of violence); United States v. Wilson, 568 F.3d 670 (8th

Cir. 2009) (finding that knowing or intentional conduct prohibited by Missouri child

abuse statute was purposeful); United States v. Spells, 537 F.3d 743 (7th Cir. 2008)

(finding conduct criminalized by Indiana fleeing and eluding statutes was purposeful

because it requires that the defendant have acted knowingly or intentionally).

The Sixth Circuit, however, has yet to directly address the matter. In United

States v. Mosley, this Court considered whether a Michigan statute criminalizing the

knowing failure to comply with an officer’s lawful demand described a crime of

violence. 575 F.3d 603, 606-07 (6th Cir. 2009). While the Court noted that such conduct

will often be purposeful, it did not conclusively address the matter. Rather, the Court

concluded that because the statute encompassed conduct that was neither violent nor

aggressive, the conduct was not a crime of violence, regardless of whether it was

purposeful. Id. at 607.

This is one of the rare cases in which a statute criminalizing “knowing” conduct

does not describe conduct sufficiently purposeful to qualify as a violent felony. See id.;

Crews, 621 F.3d at 857 n.7 (“We do not hold that ‘knowingly’ always suffices under

Begay, for perhaps there are some offenses that, while committed ‘knowingly,’ do not

typically involve purposeful, violent, and aggressive conduct.”).

Importantly, this case is distinguishable from each of the aforementioned in that

it presents the novel question of whether an individual commits a purposeful crime when

he acts with the knowledge that another intends to commit a crime, but without the intent

to commit or assist in the commission of the crime itself. As noted above, to be guilty

of facilitation of a burglary, an individual, by definition, must have acted “without the

No. 09-5778 United States v. Vanhook Page 11

intent required for criminal responsibility” for the ultimate criminal act. TENN. CODE

ANN. § 39-11-403. This key distinction provides the basis for our decision today. Not

only do statutes which criminalize “knowing” conduct generally not exclude individuals

who act intentionally, but they, in most cases, assume that the individual, in fact, acted

with such intent. For example, in Crews, the defendant challenged the lower court’s

classification of his prior conviction for “knowingly us[ing] a deadly weapon to assault

another” as a “crime of violence.” 621 F.3d at 855-57. The defendant argued, among

other things, that the conduct described by the statute was not sufficiently purposeful to

justify a sentencing enhancement. Id. at 856. The court rejected this argument,

explaining that even though the statute only required that the defendant have acted

knowingly, in almost every instance the individual would also have acted intentionally:

We have trouble imagining a circumstance in which a person could

knowingly use a dangerous weapon without intending to do so. Indeed,

Crews has not provided any case in which an individual who knowingly

engaged in an assault by means of a deadly or dangerous weapon acted

without the intent to cause harm. In short, convictions involving

knowing use of a deadly weapon typically involve “purposeful” conduct

within the meaning of Begay.

Id. at 856-57. An examination of the other “knowing” crimes found to be sufficiently

purposeful to be considered violent felonies or crimes of violence reveal that they

likewise would almost always require the defendant to have acted intentionally.5 This

5

For example, in United States v. Hampton, the Seventh Circuit held that an Indiana statute that

criminalized knowingly entering the residence of another qualified as a violent felony. 585 F.3d 1033,

1044 (7th Cir. 2009). It is difficult to understand how a defendant could knowingly enter the home of

another without intending to do so. Similarly, it would be difficult to imagine a scenario under which an

individual may knowingly inflict cruel and inhuman punishment upon a child, knowingly flee from a police

officer after the officer has clearly identified himself or herself, or knowingly assault another person and

not act with the intent to commit each of the aforementioned acts. United States v. Wilson, 568 F.3d 670

(8th Cir. 2009) (finding that knowing or intentional conduct prohibited by Missouri child abuse statute was

purposeful); United States v. Spells, 537 F.3d 343 (7th Cir. 2008) (finding knowing or intentional conduct

criminalized by Indiana fleeing and eluding statutes was purposeful); United States v. Johnson, 587 F.3d

203 (3d Cir. 2009) (holding that Pennsylvania simple assault statute criminalizing knowing actions is a

crime of violence).

No. 09-5778 United States v. Vanhook Page 12

case, in contrast, presents a situation in which the intent to commit or assist will be

lacking not merely in one instance, but in every instance.6

Our decision is further buttressed by the fact that facilitation of burglary is not

necessarily the type of violent or aggressive crime generally characterized as a violent

felony. Aggressive, violent acts are “aimed at other persons or property where persons

might be located and thereby injured.” United States v. Archer, 531 F.3d 1347, 1351

(11th Cir. 2008). “They involve overt, active conduct that results in harm to a person

or property.” United States v. Polk, 577 F.3d 515, 519 (3d Cir. 2009); see also United

States v. Herrick, 545 F.3d 53, 58 (1st Cir. 2008) (“[A]ggressive may be defined as

‘tending toward or exhibiting aggression,’ which in turn is defined as ‘a forceful action

or procedure (as an unprovoked attack) esp[ecially] when intended to dominate or

master.’ Violence may be defined as ‘marked by extreme force or sudden intense

activity.’” (citation omitted)). A cursory review of convictions under the statute reveals

that the actions of defendants guilty of facilitation of the burglary of a building may not

meet this standard. For example, in Tennessee v. Mulholland, No. 03C01-9410-CR-

00396, 1995 Tenn. Crim. App. LEXIS 689 (Aug. 16, 1995), the defendant was convicted

of facilitating the burglary of a building because: 1) he provided directions to the home

of the victim to a third-party driver on the day of the crime; and 2) was a passenger in

a car driven by a third party to the scene of the crime. Id. at *6-8. The third-party driver

ultimately relied on directions provided by the burglar when driving to the victim’s

home. Id. at *7. At no point did the government present any evidence that the burglar

and the defendant spoke of the robbery. Even assuming, as the state court did, that the

defendant passenger was aware of the burglar’s plan to rob the home, id. at *8, it is

questionable whether simply providing directions to a third party, which the third party

6

Additionally, we are not the sole court to reach this conclusion. The United States District

Court for the Southern District of Texas, upon considering TENN. CODE ANN. § 39-11-403, similarly found

that it was too unlike the crimes Congress listed in the ACCA to merit a sentencing enhancement: “The

requisite mens rea elements differ. A person convicted under [§] 403 does not have to intend to deprive

a person of property or intend to put someone in fear of bodily injury; rather [§] 403 requires only that the

person knows someone else intends to do so.” United States v. Trejo-Palacios, 418 F. Supp. 2d 915, 920

(S.D. Tex. 2006).

No. 09-5778 United States v. Vanhook Page 13

did not rely upon, would be the type of “violent” and “aggressive” conduct towards

which the otherwise clause is directed.

Regardless, the government presents little reason for us to doubt our decision.

Rather than addressing the novel issue before this Court – whether facilitation of

burglary is sufficiently purposeful, violent, and aggressive – it devotes the virtual

entirety of its brief, save one paragraph, to the discussion of whether facilitation of

burglary creates a serious risk of violence. As noted, the Supreme Court’s decision in

Begay did nothing to undercut our previous decision on this point. It appears that the

government mistakenly conflates the first and second prongs of the test pronounced in

Begay. While they sound similar, whether an act creates a serious risk of physical

injury and whether an act is violent and aggressive are two distinct inquiries. While in

many cases an act that creates a serious risk of physical injury will be violent and

aggressive, the presence of the former in no way dictates the latter. "Begay's second

requirement entails more than a mere likelihood that another will be physically injured

as a result of the offense – it requires conduct that is similar [in kind] to the comparative

offenses. . . . " United States v. Marquez, No. 09-50372, 2010 U.S. App. LEXIS 23359,

*45-46 (5th Cir. Nov. 10, 2010) (Dennis, J., dissenting).

Ultimately, the sole argument the government provides in support of its position

as to the second prong is the fact that this Court has found convictions under Michigan’s

fleeing and eluding statute to qualify as violent felonies. Unfortunately for the

government, this argument is of little usefulness. That one crime was found to be a

violent felony in no way implies that another crime with entirely different elements and

circumstances should likewise be classified as such. The crimes are readily

distinguishable. Michigan’s fleeing and eluding statute, by definition requires that the

assailant have acted purposefully, applying only to those "who willfully fail [] to obey

[an officer's] direction." MICH. COMP. LAWS § 257.602a. As explained above,

Tennessee’s facilitation statute extends beyond such persons to include those who do not

share the chief perpetrator’s intent to burglarize the building.

No. 09-5778 United States v. Vanhook Page 14

CONCLUSION

For the aforementioned reasons, the district court's classification of defendant

Charles Vanhook as an armed career criminal and the resulting sentence it imposed are,

hereby, VACATED. We REMAND the case to the district court for further

proceedings consistent with our decision.