“[T]he potential risk of physical injury arising from the commission of fourth-degree burglary under Md. Code Ann., Crim. Law § 6–205(a) is comparable to that arising from the commission of generic burglary. Critical to this conclusion is the fact that § 6–205(a
How later courts described this case
- “[T]he potential risk of physical injury arising from the commission of fourth-degree burglary under Md. Code Ann., Crim. Law § 6–205(a) is comparable to that arising from the commission of generic burglary. Critical to this conclusion is the fact that § 6–205(a
Written by the judges who cited it.
The opinion
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5001
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROMELUS PENTROY MARTIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:11-cr-00685-PJM-1)
Argued: January 30, 2014 Decided: June 5, 2014
Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and Liam
O’GRADY, United States District Judge for the Eastern District
of Virginia, sitting by designation.
Vacated and remanded by published opinion. Chief Judge Traxler
wrote the majority opinion, in which Judge Diaz joined. Judge
Diaz wrote a separate concurring opinion. Judge O’Grady wrote a
dissenting opinion.
ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant. Paul Nitze, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
TRAXLER, Chief Judge:
Romelus Pentroy Martin appeals the 77-month sentence
imposed after he pleaded guilty to unlawful possession of a
firearm by a convicted felon. See 18 U.S.C. § 922(g)(1). We
agree with Martin that the district court erred by increasing
his sentence after determining that Martin’s prior conviction
for fourth-degree burglary constituted a crime of violence under
U.S.S.G. § 2K2.1(a)(2), and we therefore vacate Martin’s
sentence and remand for resentencing.
I.
The Sentencing Guideline applicable to § 922(g) violations
sets a base offense level of 24 for defendants who commit the
offense after “sustaining at least two felony convictions of . .
. a crime of violence,” U.S.S.G. § 2K2.1(a)(2), and a base
offense level of 20 for defendants with only one prior
conviction for a crime of violence, see id. § 2K2.1(a)(4)(A).
When Martin pleaded guilty to the felon-in-possession
charge in August 2012, he had three prior convictions, including
a 2007 Maryland conviction for conspiracy to commit robbery and
a 2009 Maryland conviction for fourth-degree burglary. The
district court held that both the 2007 conviction and the 2009
conviction amounted to crimes of violence as defined by the
Guidelines, and the court therefore assigned Martin a base-
offense level of 24. After adjusting the offense level to
2
reflect Martin’s acceptance of responsibility, the district
court determined that Martin’s advisory sentencing range was 77-
96 months, and the court sentenced Martin to 77 months’
imprisonment.
On appeal, Martin concedes that his 2007 conviction was
properly treated as a crime of violence, but he contends that
the district court erred by treating the 2009 conviction as a
crime of violence. If the district court had not treated the
2009 conviction as a crime of violence, Martin’s base-offense
level would have been 20 instead of 24, and his advisory
sentencing range would have been 51-63 months.
II.
For purposes of U.S.S.G. § 2K2.1, a “crime of violence”
is defined as
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that –
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential
risk of physical injury to another.
U.S.S.G. § 4B1.2(a); see id. § 2K2.1, cmt. 1 (defining “crime of
violence” through cross-reference to § 4B1.2(a)). When
determining whether a prior conviction qualifies as a crime of
violence under the Guidelines, we apply a categorical approach,
3
focusing on “the fact of conviction and the statutory definition
of the prior offense” rather than the conduct underlying the
offense. Taylor v. United States, 495 U.S. 575, 602 (1990); see
United States v. Carthorne, 726 F.3d 503, 511 (4th Cir. 2013),
cert. denied, 134 S. Ct. 1326 (Feb. 24, 2014). 1
Maryland’s fourth-degree burglary statute encompasses four
separate crimes: breaking and entering the dwelling of another,
see Md. Code Ann., Crim. Law § 6-205(a); breaking and entering
the storehouse of another, see id. § 6-205(b); being in a
dwelling or storehouse of another (or the yard or other area
belonging to such dwelling or storehouse) with the intent to
commit theft, see id. § 6-205(c); and possessing burglar’s tools
with intent to use, see id. § 6-205(d). Although there was some
disagreement below, the parties now agree that the relevant
charging documents establish that Martin was convicted of
violating subsection (a), which provides that “[a] person may
not break and enter the dwelling of another.” Id. § 6-205(a).
Because fourth-degree burglary does not have “as an element
the use, attempted use, or threatened use of physical force
1
While the Taylor Court was interpreting “violent felony”
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e)(2)(B), we generally apply Taylor’s categorical approach
when considering prior-conviction-based enhancements under the
Guidelines. See, e.g., Carthorne, 726 F.3d at 511 n.6.
4
against the person of another,” it is not a crime of violence
under U.S.S.G. § 4B1.2(a)(1).
And as the government concedes, the crime likewise does not
constitute the enumerated crime of “burglary of a dwelling.”
U.S.S.G. § 4B1.2(a)(2). Under the categorical approach, “a
prior conviction constitutes a conviction for [an] enumerated
offense if the elements of the prior offense correspond in
substance to the elements of [an] enumerated offense.” United
States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013)
(internal quotation marks and alteration omitted). “[W]here
Congress has not indicated how a prior offense enumerated in a
sentencing enhancement statute is to be interpreted, it should
be understood to refer to ‘the generic, contemporary meaning’ of
the crime.” United States v. Rangel–Castaneda, 709 F.3d 373,
376 (4th Cir. 2013) (quoting Taylor, 495 U.S. at 598).
In Taylor, the Supreme Court defined generic “burglary”
under the ACCA as “an unlawful or unprivileged entry into, or
remaining in, a building or other structure, with intent to
commit a crime.” Taylor, 495 U.S. at 598. Generic “burglary of
a dwelling” under the Guidelines follows the Taylor definition,
“with the additional requirement that a burglary qualifying as a
‘crime of violence’ must involve a dwelling.” United States v.
Bonilla, 687 F.3d 188, 190 n.3 (4th Cir. 2012), cert. denied,
134 S. Ct. 52 (Oct. 7, 2013). Because § 6-205(a) does not
5
require that the defendant have the intent to commit a crime
when he enters the dwelling, fourth-degree burglary is not
generic burglary of a dwelling under § 4B1.2(2). Accordingly,
Martin’s 2009 conviction is a crime of violence only if it
satisfies the requirements of the “residual clause” of §
4B1.2(a)(2) – if the offense “otherwise involves conduct that
presents a serious potential risk of physical injury to
another.” U.S.S.G. § 4B1.2(a)(2). We turn to that inquiry now.
III.
When determining whether a prior conviction falls within
the residual clause, our inquiry remains a categorical one,
“consider[ing] whether the elements of the offense are of the
type that would justify its inclusion within the residual
provision, without inquiring into the specific conduct of this
particular offender.” James v. United States, 550 U.S. 192, 202
(2007). The parties disagree, however, about the precise scope
of the residual-clause inquiry.
In James, the Supreme Court explained that the enumerated
offenses preceding the residual clause “provide a baseline
against which to measure the degree of risk that a nonenumerated
offense must ‘otherwise’ present in order to qualify” as a crime
of violence. Id. at 208 (emphasis added). The Court held that
attempted burglary is a violent felony under the ACCA’s residual
clause because the risk posed by an attempted burglary crime
6
presents a risk of physical injury “comparable to that posed by
its closest analog among the enumerated offenses--here,
completed burglary.” Id. at 203.
In Begay v. United States, 553 U.S. 137 (2008), a case
involving a prior conviction for driving under the influence,
the Court added an additional layer to the degree-of-risk
analysis. The Court held that, in addition to establishing the
baseline degree of risk, the enumerated offenses also
“illustrate the kinds of crimes that fall within the statute’s
scope. Their presence indicates that the statute covers only
similar crimes, rather than every crime that presents a serious
potential risk of physical injury to another.” Id. at 142
(first emphasis added; internal quotation marks omitted). The
Begay Court thus held that the enumerated offenses must be
understood “as limiting the crimes that [the residual clause]
covers to crimes that are roughly similar, in kind as well as in
degree of risk posed, to the examples themselves.” Id. at 143
(emphasis added). The Court concluded that the ACCA’s
enumerated crimes “all typically involve purposeful, violent,
and aggressive conduct,” id. at 144-45 (internal quotation marks
omitted), and the Court distinguished those crimes from offenses
that -- like DUI -- “impose strict liability, criminalizing
conduct in respect to which the offender need not have had any
criminal intent at all,” id. at 145. Concluding that DUI is not
7
purposeful, violent, or aggressive, the Court held that it was
not similar in kind to the enumerated offenses and thus was not
a crime of violence. See id. at 145-46.
In Sykes v. United States, 131 S. Ct. 2267 (2011), however,
the Court returned to the comparable-degree-of-risk approach,
explaining that “[i]n general, levels of risk divide crimes that
qualify [under the residual clause] from those that do not.”
Id. at 2275 (emphasis added). As to the Begay test, the Court
stated that
[t]he phrase “purposeful, violent, and
aggressive” has no precise textual link to the
residual clause, which requires that an ACCA predicate
“otherwise involve conduct that presents a serious
potential risk of physical injury to another.” §
924(e)(2)(B)(ii). The Begay phrase is an addition to
the statutory text. In many cases the purposeful,
violent, and aggressive inquiry will be redundant with
the inquiry into risk, for crimes that fall within the
former formulation and those that present serious
potential risks of physical injury to others tend to
be one and the same. As between the two inquiries,
risk levels provide a categorical and manageable
standard that suffices to resolve the case before us.
Begay involved a crime akin to strict liability,
negligence, and recklessness crimes; and the
purposeful, violent, and aggressive formulation was
used in that case to explain the result. The felony
at issue here is not a strict liability, negligence,
or recklessness crime and because it is, for the
reasons stated and as a categorical matter, similar in
risk to the listed crimes, it is a crime that
“otherwise involves conduct that presents a serious
potential risk of physical injury to another.”
Id. at 2275-76.
8
Martin argues that Begay governs our analysis of the
residual clause question, such that the offense-level
enhancement may be sustained only if fourth-degree burglary is
(1) similar in kind to the enumerated offenses – i.e.,
purposeful, violent, and aggressive; and (2) the degree of risk
it poses is roughly similar to the degree of risk posed by
burglary, the closest enumerated-crime analog. The government,
however, argues that an inquiry into the degree of risk is all
that is required after Sykes. In the government’s view, Sykes
limited application of Begay’s similar-in-kind standard to
crimes akin to strict liability, negligence, and recklessness
crimes. Because the crime at issue in this case requires the
defendant to know that his entry was unauthorized, see Dabney v.
State, 858 A.2d 1084, 1090-91 n.2 (Md. Ct. Spec. App. 2004), it
is not a strict-liability crime, and the government therefore
contends that Begay is inapplicable.
Most of the circuits addressing the issue have held that
Sykes limited Begay’s similar-in-kind inquiry to crimes
predicated on strict liability, negligence, or recklessness.
See, e.g., United States v. Chitwood, 676 F.3d 971, 979 (11th
Cir.) (“Sykes makes clear that Begay’s ‘purposeful, violent, and
aggressive’ analysis does not apply to offenses that are not
strict liability, negligence, or recklessness crimes. . . .”),
cert. denied, 133 S. Ct. 288 (2012); accord United States v.
9
Spencer, 724 F.3d 1133, 1139 (9th Cir. 2013); Brown v. Caraway,
719 F.3d 583, 593 (7th Cir. 2013); United States v. Bartel, 698
F.3d 658, 662 (8th Cir. 2012), cert. denied, 133 S. Ct. 1481
(Feb. 25, 2013); Harrington v. United States, 689 F.3d 124, 135-
36 (2d Cir. 2012); United States v. Rodriguez, 659 F.3d 117, 119
(1st Cir. 2011); United States v. Smith, 652 F.3d 1244, 1247-48
(10th Cir. 2011).
In this circuit, however, we have continued, even after
Sykes, to apply Begay’s similar-in-kind requirement to residual-
clause cases. See Carthorne, 726 F.3d at 515 n.12 (“The Supreme
Court has also held that, for an offense to fall within the
residual clause, it must be ‘roughly similar, in kind as well as
in degree of risk posed,’ to arson, burglary, extortion, and
crimes involving explosives.’” (quoting Begay, 553 U.S. at
143)); United States v. Davis, 689 F.3d 349, 357-58 (4th Cir.
2012) (per curiam) (“[A] crime falls within the residual
provision if it involves ‘purposeful, violent, and aggressive
conduct,’ that ‘in the ordinary case, presents a serious
potential risk of injury to another.’” (quoting Begay, 553 U.S.
at 144–45, and James, 550 U.S. at 208)); see also United States
v. Hemingway, 734 F.3d 323, 338 (4th Cir. 2013) (declining to
apply Begay standard where degree-of-risk inquiry established
that prior conviction was not a crime of violence). But see
United States v. Hudson, 673 F.3d 263, 265, 267-68 (4th Cir.)
10
(mentioning Begay, but applying only the Sykes degree-of-risk
standard when determining that prior conviction amounted to a
crime of violence under the ACCA’s residual clause), cert.
denied, 133 S. Ct. 207 (2012). Accordingly, we will consider
whether Martin’s prior conviction for fourth-degree burglary
qualifies as a crime of violence under the residual clause of §
4B1.2 under both the degree-of-risk test and the similar-in-kind
test, as required by Begay.
A. Degree of Risk
Under the degree-of-risk test, a prior conviction amounts
to a crime of violence under the residual clause if the risk of
physical injury posed by that offense is “roughly similar,”
Begay, 553 U.S. at 143, or “comparable” to the risk of physical
injury “posed by its closest analog among the enumerated
offenses,” James, 550 U.S. at 203. “A roughly similar degree of
risk means that the prior crime, like the enumerated offenses,
creates an immediate, serious, and foreseeable physical risk
that arises concurrently with the commission of the crime
itself.” United States v. White, 571 F.3d 365, 370 (4th Cir.
2009) (internal quotation marks and alterations omitted).
As it was in James, the enumerated offense of burglary is
the closest analog to the fourth-degree burglary conviction at
issue in this case. Accordingly, the question is whether the
risk of physical injury posed by the fourth-degree burglary
11
offense is roughly similar to the risk posed by generic
burglary.
The Supreme Court has explained that the risk of physical
injury associated with generic burglary comes “from the
possibility of a face-to-face confrontation between the burglar
and a third party -- whether an occupant, a police officer, or a
bystander -- who comes to investigate.” James, 550 U.S. at
203. The government contends that the same possibility of
confrontation is present during the commission of fourth-degree
burglary and that the potential risk of physical injury
associated with fourth-degree burglary is thus roughly the same
as that associated with generic burglary.
Martin, however, contends that the risk of physical injury
during a generic burglary comes from the burglar’s specific
intent to commit a crime. See Taylor, 495 U.S. at 588 (“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.” (emphasis added)). Because fourth-degree
burglary does not require an intent to commit a crime at the
time of the unlawful entry, Martin argues that there is less
risk of violent confrontation.
While Martin’s argument is not without force, we agree with
the government the potential risk of physical injury arising
12
from the commission of fourth-degree burglary under Md. Code
Ann., Crim. Law § 6-205(a) is comparable to that arising from
the commission of generic burglary. Critical to this conclusion
is the fact that § 6-205(a) requires entry into a dwelling. As
this court observed when considering whether the substantively
identical statutory predecessor to § 6-205(a) was a crime of
violence, dwellings – unlike “‘storehouses’” -- are “likely to
be occupied.” United States v. Custis, 988 F.2d 1355, 1363 (4th
Cir. 1993), cert. granted on other grounds, 510 U.S. 913 (1993),
and aff’d, 511 U.S. 485 (1994). And because dwellings are
likely to be occupied, we concluded in Custis -- even though the
statute lacked the intent-to-commit-a-crime element -- that the
crime of breaking and entering the dwelling house of another
creates “a substantial risk of confrontation.” Id. at 1363. 2
This risk of confrontation is precisely the same risk that makes
generic burglary a dangerous crime. See Sykes, 131 S. Ct. at
2
The Custis court held that a conviction for attempted
breaking and entering of a dwelling under Md. Code Ann. art. 27,
§ 31A (repealed 1994) was a crime of violence under the ACCA’s
residual clause. Because the Custis court’s analysis of the
residual-clause issue did not follow the approach now dictated
by the Supreme Court’s later-decided opinions in James, Begay,
and Sykes, Custis’ ultimate crime-of-violence determination is
no longer binding. See, e.g., United States v. Prince-Oyibo,
320 F.3d 494, 498 (4th Cir. 2003) (“Absent an en banc overruling
or a superseding contrary decision of the Supreme Court, we, as
a circuit panel, are bound by [earlier circuit precedent].”).
Those later-decided opinions, however, do not undermine the
Custis court’s analysis of the nature of, and the risks inherent
in, the underlying crime.
13
2273 (“Burglary is dangerous because it can end in confrontation
leading to violence.”); James, 550 U.S. at 211 (“The risk of
physical injury in [generic burglary] occurs when there is a
confrontation between the criminal and another person, whether
an occupant of the structure, a law enforcement officer or
security guard, or someone else.”).
Martin argues, however, that an offender who enters a
dwelling without a contemporaneous intent to commit a crime
would be less likely to respond violently to the discovery of
his presence. Even if we accept that argument as true, it
typically will not be apparent to the discovering homeowner
whether an intruder harbors an additional intent to commit an
additional crime, and the homeowner’s response to discovering an
intruder will likely be the same whether or not the intruder
harbors the additional intent. See James, 550 U.S. at 211
(noting that homeowner angered by an attempted burglary “may
give chase, and a violent encounter may ensue”). When faced
with an angry homeowner taking protective measures, or a police
officer responding to a call about suspicious activity,
intruders – even those without the specific intent to commit a
crime – may well resort to violence in an effort to avoid
apprehension. As the Sixth Circuit has explained, the risk of
physical injury inherent in such confrontations “lies not only
in the intruder’s intent, but in their volatility. People do
14
unpredictable things when they unexpectedly encounter burglars
in their homes. The burglars often reciprocate. The result is
confrontations that present a serious risk of physical injury
regardless of the burglar’s initial intent.” United States v.
Skipper, 552 F.3d 489, 493 (6th Cir. 2009) (emphasis added;
citation omitted).
Under these circumstances, and given this country’s strong
tradition of respecting the sanctity of the home and the
homeowner’s right to exclude others therefrom, we simply cannot
conclude that the absence of the intent to commit a crime makes
the breaking-and-entering at issue here significantly less risky
than generic burglary. Because the same risk of confrontation
and resulting physical injury associated with generic burglary
arises under the elements of the crime for which Martin was
convicted, we believe that the risk of physical injury posed by
Martin’s offense is comparable to the risk of physical injury
posed by generic burglary. See United States v. Hampton, 585
F.3d 1033, 1043 (7th Cir. 2009) (concluding that residential
entry under Indiana law, which does not include a felonious-
intent element, “is similar in risk to the enumerated offense of
burglary because both create a substantial risk that if the
offender is confronted by someone inside the home, violence will
ensue”); Skipper, 552 F.3d at 493 (conviction under Ohio’s
fourth-degree burglary statute, which does not require felonious
15
intent at time of entry, is a violent felony under the residual
clause of U.S.S.G. § 4B1.2(a)(2)).
B. Similar In Kind
Our conclusion that fourth-degree burglary of a dwelling
and generic burglary have similar degrees of risk does not end
our inquiry, as Begay requires that the prior conviction must
also be similar in kind to the enumerated crimes. See Begay,
553 U.S. at 143.
Four crimes are enumerated in the text of § 4B1.2(a)(2) --
burglary of a dwelling, arson, extortion, and crimes involving
the use of explosives. The commentary to § 4B1.2(a) “adds six
crimes to the list of example crimes for Guidelines cases --
murder, manslaughter, kidnapping, aggravated assault, forcible
sex offenses, and robbery.” United States v. Peterson, 629 F.3d
432, 439 (4th Cir. 2011); see U.S.S.G. § 4B1.2(a) cmt. 1.
Because this “enlarged array of example crimes” all involve
conduct that is properly viewed as purposeful, violent, and
aggressive, Peterson, 629 F.3d at 439, the Begay inquiry as
applied to the Guidelines requires “that a qualifying predicate
offense under § 4B1.2(a) must also be purposeful, violent, and
aggressive,” id.
To be purposeful, violent, and aggressive, a crime must
have a mens rea of at least recklessness; crimes that can be
committed through negligent conduct do not satisfy the Begay
16
inquiry. See id. at 439-40 (applying Begay to conclude that
involuntary manslaughter under North Carolina law is not a crime
of violence under the residual clause of U.S.S.G. § 4B1.2(a)(2)
because the crime can be committed through negligent conduct);
United States v. Rivers, 595 F.3d 558, 565 (4th Cir. 2010)
(South Carolina blue-light statute not purposeful, aggressive,
and violent under Begay because the statute “explicitly
criminalizes a broad swath of unintentional conduct”). Relying
on these principles, Martin argues that a violation of § 6-
205(a) cannot be characterized as purposeful because the statute
can be violated by negligent conduct. We agree.
As Maryland’s highest court has made clear, the statute at
issue in this case requires proof of the defendant’s “general
criminal intent to break and enter” the dwelling. Warfield v.
State, 554 A.2d 1238, 1250 (Md. 1989) (considering § 6-205(a)’s
substantively identical statutory predecessor). Thus, “to be
culpable” under the statute, the defendant must have entered the
dwelling “with an awareness that it was unwarranted -- lacking
authority, license, privilege, invitation, or legality.” Id. at
1251.
The Warfield court explained that the statute’s knowledge
requirement “is designed primarily to exclude from criminal
liability both the inadvertent trespasser and the trespasser who
believes that he has received an express or implied permission
17
to enter or remain.” Id. at 1250 (quoting Model Penal Code §
221.2 (1985)). Accordingly, it is an affirmative defense to a §
6-205(a) charge “if the actor reasonably believed that the owner
of the premises would have licensed him to enter.” Green v.
State, 705 A.2d 133, 139 (Md. Ct. Spec. App. 1998) (internal
quotation marks and alterations omitted)); see also Warfield,
553 A.2d at 1251 (“To make culpable the inadvertent trespasser
and the trespasser who entertains a reasonable belief that his
conduct was proper would be unreasonable, illogical,
inconsistent with common sense, and contrary to the interests of
justice.” (emphasis added)).
Because the defense requires a reasonable belief of
permission to enter the dwelling, a defendant who unreasonably
believed that he had permission to enter would be guilty under §
6-205(a). That is, a defendant who reasonably believed that he
had permission to enter would not have the awareness that his
entry was unwarranted, while a defendant who unreasonably
believed he had permission would be deemed to be aware that his
entry was unwarranted. It is therefore clear that a conviction
under § 6-205(a) may be based on negligent rather than
intentional conduct. See Bane v. State, 533 A.2d 309, 317 (Md.
Ct. Spec. App. 1987) (Because “breaking and entering involves no
felonious or larcenous intent, it is a crime of general intent
that includes within its scope a variety of acts, including some
18
that are reckless or negligent. A conviction for that offense
may result either from a well-planned scheme-or merely rash,
impetuous conduct of a defendant.” (citation omitted)). And
because the statute may be violated by negligent conduct, a
violation of § 6-205(a) is not purposeful and thus is not
similar in kind to the Guidelines’ enumerated crimes. Martin’s
2009 conviction under § 6-205(a) therefore cannot be treated as
a crime of violence under the residual clause of U.S.S.G. §
4B1.2(a)(2). See Peterson, 629 F.3d at 439; Rivers, 595 F.3d at
565.
IV.
Although we conclude that Md. Code Ann., Crim. Law § 6-
205(a) proscribes conduct that presents a degree of risk of
physical injury that is roughly similar to the risk of injury
posed by generic burglary, the statute can be violated by
negligent conduct and therefore is not similar in kind to the
offenses enumerated in § 4B1.2 of the Sentencing Guidelines.
The district court therefore erred by treating Martin’s 2009
conviction for violating § 6-205(a) as a crime of violence under
the residual clause of U.S.S.G. § 4B1.2(a)(2). 3 Accordingly, we
3
Martin also contends that the residual clause is
unconstitutionally vague. That argument, however, has already
been rejected by this court and by the Supreme Court. See Sykes
v. United States, 131 S. Ct. 2267, 2277 (2011) (Although the
“general and qualitative” nature of the residual clause “may at
(Continued)
19
hereby vacate Martin’s sentence and remand for resentencing
consistent with this opinion.
VACATED AND REMANDED
times be . . . difficult for courts to implement,” the residual
clause “states an intelligible principle and provides guidance
that allows a person to conform his or her conduct to the law.”
(internal quotation marks omitted)); United States v. Hudson,
673 F.3d 263, 268–69 (4th Cir.) (“[T]he Supreme Court has
consistently declined to find the residual clause void for
vagueness.”), cert. denied, 133 S. Ct. 207 (2012).
20
DIAZ, Circuit Judge, concurring:
This case raises a vexing question regarding the
application of the crime of violence enhancement found in the
Guidelines: To what extent does Begay’s 1 “similar in kind” test
for analyzing offenses under the residual clause survive Sykes
v. United States, 131 S. Ct. 2267 (2011)? 2 Specifically, would
the Supreme Court apply that test in determining whether
Martin’s fourth degree burglary conviction under Maryland law
qualifies as a crime of violence? Or would the Court again
change course? 3
Were I writing on a cleaner slate, I would stop after
applying the “degree of risk” test the Chief Judge posits in
Part III.A of his opinion and find that Martin’s fourth degree
burglary conviction is for a crime of violence under the
residual clause. This is so because the offense poses a risk of
1
Begay v. United States, 553 U.S. 137 (2008).
2
As the Chief Judge notes, “[w]e rely on precedents
addressing whether an offense is a crime of violence under the
Guidelines interchangeably with precedents evaluating whether an
offense constitutes a violent felony under the Armed Career
Criminal Act.” See United States v. Carthorne, 726 F.3d 503,
511 n.6 (4th Cir. 2013), cert. denied, 134 S. Ct. 1326 (2014)
(internal quotation marks omitted).
3
The Supreme Court has granted certiorari in United States
v. Johnson, 526 F. App’x 708 (8th Cir. 2013) (unpublished), on
the issue of whether possession of a short-barreled shotgun is a
violent felony under the Armed Career Criminal Act. Perhaps
this case will give the Court an opportunity to clarify Begay’s
continued vitality after Sykes.
21
physical injury comparable to the risk posed by generic
burglary. See James v. United States, 550 U.S. 192, 203 (2007).
But, as the Chief Judge explains, it appears we must also
apply Begay’s teaching here, which requires that we consider
whether the offense conduct is “similar in kind” to the residual
clause’s enumerated offenses--i.e., whether the offense is
“purposeful, violent, and aggressive.” See 553 U.S. at 143-45.
Because negligent conduct is all that is needed in Maryland to
convict someone for breaking and entering the dwelling of
another, the crime does not always involve the purposeful,
violent, and aggressive conduct that is typical of the
Guidelines’ enumerated crimes. Thus, I am compelled to agree
with the Chief Judge that Martin’s sentence was improperly
enhanced.
“[T]o put it mildly,” the residual clause is “not a model
of clarity.” See James, 550 U.S. at 217 (Scalia, J.,
dissenting). The clause “is nearly impossible to apply
consistently,” and the Supreme Court’s jurisprudence “has
created numerous splits among the lower federal courts.” See
Chambers v. United States, 555 U.S. 122, 133 (2009) (Alito, J.,
concurring in the judgment); cf. United States v. Vann, 660 F.3d
771, 797 (4th Cir. 2011) (en banc) (Davis, J., concurring) (“At
the end of the day, it may well be that Justice Scalia is right:
22
that the residual clause of the Armed Career Criminal Act is
unconstitutionally vague.”)
The Supreme Court has struggled mightily to make sense of
this sphinx-like provision, but the clause remains an elusive
target. We are told that a prior conviction triggers the
sentencing enhancement when “the risk posed by [the offense at
issue] is comparable to that posed by its closest analog among
the enumerated offenses.” See James, 550 U.S. at 203 (majority
opinion). But, at least in some cases, the offense must also be
“roughly similar, in kind as well as in degree of risk posed, to
the [enumerated] examples.” See Begay, 553 U.S. at 143. To be
roughly similar in kind, the crime must be “purposeful, violent,
and aggressive.” See id. at 145. Fear not though, because “[i]n
many cases the purposeful, violent, and aggressive inquiry will
be redundant with the inquiry into risk.” See Sykes, 131 S. Ct.
at 2275. As Justice Scalia noted in dissent in Sykes, however,
why the inquiry will often be redundant, and when it will not
be, “are not entirely clear.” 4 See 131 S. Ct. at 2285.
To further complicate matters, the Court in Sykes
emphasized that “Begay involved a crime [(driving under the
4
In her separate dissent, Justice Kagan (joined by Justice
Ginsberg) suggested that “[the purposeful, violent, and
aggressive test] will make a resurgence--that it will be
declared non-redundant--the next time the Court considers a
crime, whether intentional or not, that involves risk of injury
but not aggression or violence.”). See id. at 2289 n.1.
23
influence)] akin to strict liability, negligence, and
recklessness crimes; and the purposeful, violent, and aggressive
formulation was used in that case to explain the result.” Id.
at 2276 (majority opinion). That statement, however, leaves
open a question implicated here--whether Begay applies to all
strict liability, recklessness, and negligence offenses.
I am not absolutely confident that the Court would actually
apply Begay in this instance, but neither can I discount the
possibility. I therefore join the Chief Judge’s opinion. 5
Beyond this case, however, “[t]he Court’s ever-evolving
interpretation of the residual clause will keep defendants and
judges guessing for years to come.” Id. at 2287 (Scalia, J.,
dissenting). I urge Congress or the Court to shed light on this
“black hole of confusion and uncertainty.” See Vann, 660 F.3d
at 787 (Agee, J., concurring).
5
I do so notwithstanding Judge O’Grady’s fine dissent,
which does not lack for persuasive force. His analysis
confirms the substantial challenge that judges face in deciding
when a prior conviction is for a crime of violence.
24
O’GRADY, District Judge, dissenting:
In this case we are called to decide whether Appellant
Romelus Martin properly received a sentence enhancement under
U.S.S.G. § 2K2.1(a)(2) for having two prior convictions for
crimes of violence as defined by U.S.S.G. § 4B1.2. Specifically,
Martin argues that the district court’s categorization of his
2009 Maryland conviction for fourth degree burglary as a “crime
of violence” was improper because it does not proscribe
“purposeful, violent, and aggressive” conduct that is similar in
kind to the offenses enumerated in § 4B1.2(a)(2). As Judge Diaz
noted, the federal courts of appeals have struggled to
consistently apply the residual clause in the wake of Begay and
Sykes. The extent to which Begay’s “similar in kind” requirement
survived Sykes remains highly uncertain, and I join in Judge
Diaz’s call for clarity from Congress or the Court. 1 However,
because I find that our precedents and those of the Supreme
Court compel the conclusion that breaking and entering a
dwelling is a “crime of violence” under § 4B1.2, I respectfully
dissent and would affirm the sentence imposed by the district
court.
1
The Supreme Court will have an opportunity to address the
status of Begay next term in United States v. Johnson, 526 F.
App’x 708 (8th Cir. 2013), in which certiorari was recently
granted on the issue of whether possession of a short-barreled
shotgun is a violent felony under the ACCA.
25
I.
I am in agreement, as is Judge Diaz, with Section III(A) of
the majority opinion, in which the Chief Judge deftly analyzes
this case under the “degree of risk” test utilized by the
Supreme Court in James and Sykes. In 2009, Martin was convicted
in Maryland of “break[ing] and enter[ing] the dwelling of
another” in violation of Maryland Code Ann., Crim. Law § 6-
205(a). Because this crime creates “the possibility of a face-
to-face confrontation between the burglar and a third party,”
James v. United States, 550 U.S. 192, 203 (2007), it poses a
risk of physical injury comparable to the risk arising from a
generic, Taylor burglary, even in the absence of a specific
intent element. Therefore, under the familiar “degree of risk”
analysis, each of us agrees that Maryland fourth degree burglary
of a dwelling constitutes a crime of violence under the
Guidelines.
In Begay v. United States, 553 U.S. 137 (2008), the Supreme
Court added a layer to the “degree of risk” test as it
considered whether a prior conviction for driving under the
influence was a crime of violence under the § 4B1.2’s residual
clause. Although the Court found that DUI presents a serious
potential risk of physical injury (and therefore might have
satisfied the James “degree of risk” test), it nonetheless held
that DUI did not qualify as a crime of violence. The Court
26
reasoned that unlike the crimes enumerated in § 4B1.2(a)(2),
which all “typically involve purposeful, violent, and aggressive
conduct,” driving under the influence is a strict liability
crime. Because DUI does not require “any criminal intent at
all,” 553 U.S. at 145, the Court found that it was not
sufficiently “similar in kind” to the enumerated offenses to
constitute a crime of violence under the Guidelines. Id. at 143
(punctuation omitted).
Three years later in Sykes v. United States, 131 S. Ct.
2267 (2011), the Court revisited the residual clause, holding
that a conviction for knowingly or intentionally “flee[ing] from
a law enforcement officer” in a vehicle was categorically a
crime of violence under 18 U.S.C. § 924(e). 2 In Sykes, the Court
retreated from Begay’s “similar in kind” requirement and found
that a “degree of risk” analysis alone was sufficient to resolve
the case. Writing for the majority, Justice Kennedy stressed
that Begay was “[t]he sole decision of this Court concerning the
reach of ACCA’s residual clause in which risk was not the
dispositive factor,” and observed that the phrase “purposeful,
violent, and aggressive” had “no precise textual link to the
2
As the Chief Judge notes, the definition of “crime of
violence” in this circuit is informed interchangeably by cases
decided under the Guidelines (U.S.S.G. § 4B1.2(a)(2)) and under
nearly identical language in the Armed Career Criminal Act (18
U.S.C. § 924(e)). See United States v. Mobley, 687 F.3d 625, 628
n.3 (4th Cir. 2012), cert. denied, 133 S. Ct. 888 (2013).
27
residual clause.” 131 S. Ct. at 2275. The majority explained
that in contrast to Begay, in which the Court dealt with DUI (“a
crime akin to strict liability, negligence, and recklessness
crimes” that does not require any criminal intent), the Indiana
statute at issue in Sykes had “a stringent mens rea requirement”
of knowledge or intent. Id. at 2275–76. The Court thus found
that because the vehicular flight statute proscribed inherently
risky conduct and required a criminal mens rea, the “purposeful,
violent, and aggressive” test that was used to explain the
result in Begay had no bearing on the case. Id. (“As between the
two inquiries, risk levels provide a categorical and manageable
standard that suffices to resolve the case before us.”).
In the aftermath of Sykes, the courts of appeals have
varied in their treatment of Begay’s “similar in kind” test.
Some courts have suggested that Begay may not have survived
Sykes at all. See, e.g., United States v. Sandoval, 696 F.3d
1011, 1016–17 n. 8 (10th Cir. 2012) (“[I]t is hard to say
whether the Begay test survived Sykes . . . .”). See also United
States v. Honeycutt, 2011 WL 2471024, at *4 (S.D. W. Va. 2011)
(“Even as to such ‘strict liability, negligence, and
recklessness crimes,’ however, it is far from clear that the
Supreme Court is still committed to the Begay test.”). Most
courts, as observed by the Chief Judge, have continued to apply
Begay’s “similar in kind” test only to strict liability,
28
negligence, and recklessness crimes. See United States v.
Chitwood, 676 F.3d 971, 979 (11th Cir. 2012) (collecting cases).
Because I find that the Fourth Circuit has taken that path and
that burglary of a dwelling under § 6-205(a) is not a strict
liability, negligence, or recklessness crime, I must depart from
the conclusion reached by the majority. 3
II.
Although this circuit has continued to make reference to
Begay’s “similar in kind” test in residual clause cases after
Sykes, we have not uniformly (or even consistently) treated it
as a counterpart to the “degree of risk” test. In our most
recent residual clause case, this Court held that “[t]he
appropriate ‘analysis should focus on the level of risk
associated with the previous offense of conviction,
notwithstanding the purposeful, violent, and aggressive conduct
stressed by the Begay Court in the context of a strict liability
offense.’” United States v. Hemingway, 734 F.3d 323, 338 (4th
Cir. 2013) (emphasis added) (quoting United States v. Vann, 660
F.3d 771, 780 (4th Cir. 2011) (King, J., concurring)). The Court
3
However, even if Begay survived Sykes in its entirety and
continues to apply in all residual clause cases in this circuit,
I would still find that under Supreme Court and Fourth Circuit
precedent, Maryland fourth degree burglary of a dwelling is
“purposeful, violent, and aggressive” and therefore a “crime of
violence” under Begay’s “similar in kind” analysis. See infra
Part III.
29
went on to explain that “[i]n short, Sykes makes clear that
Begay did not substitute the ‘purposeful, violent, and
aggressive’ inquiry for the analysis of risk that is already
identified in the residual clause.” Id. In another 2013 case,
United States v. Carthorne, 726 F.3d 503, 513–15 (4th Cir.), we
also remained singularly focused on the “degree of risk”
analysis, only once citing to Begay in a footnote. 4 See also
United States v. Davis, 689 F.3d 349, 357–58 (4th Cir. 2012)
(reciting Begay’s “purposeful, violent, and aggressive”
language, but analyzing the statute based on the “dispositive
question”: “whether such conduct presents a serious potential
risk of physical injury to another”).
In other post-Sykes residual clause cases, this Court has
sidestepped the “similar in kind” test altogether. For example,
in United States v. Hudson, our analysis revolved only around
the “degree of risk” approach without any consideration of the
“similar in kind” or “purposeful, violent, and aggressive”
tests. 673 F.3d 263, 266–69 (4th Cir. 2012). See also United
4
After resolving the case exclusively under the “degree of
risk” analysis, the Court referred briefly to the “purposeful,
violent, and aggressive” test only to observe that it would have
reached the same conclusion under that standard. 726 F.3d at 515
n.12. The only case the Carthorne Court cited for the
application of the Begay test in our circuit was United States
v. Thornton, a pre-Sykes case in which we applied Begay‘s
reasoning to the strict liability offense of statutory rape. 554
F.3d 443, 448 (4th Cir. 2009).
30
States v. Tillery, 702 F.3d 170, 176–77 (4th Cir. 2012) (holding
that the inherent risk of physical injury that results from
eluding police in a motor vehicle renders it a crime of
violence, without any mention of Begay). There appears to be
only one reported post-Sykes case in which this circuit employed
both the “degree of risk” and “similar in kind” analyses, and
that case supports the conclusion that crimes requiring
knowledge (as § 6-205(a) does) are “purposeful” under Begay. See
United States v. Mobley, 687 F.3d 625, 631 (4th Cir. 2012).
Ultimately, as Judge Wilkinson stated in United States v.
Vann: “Sykes clarifies that the risk of physical harm need not
necessarily arise from ‘purposeful, violent, and aggressive’
conduct to qualify as an ACCA predicate.” 660 F.3d 771, 804 (4th
Cir. 2011) (en banc) (Wilkinson, J., concurring). The mention of
the Begay test in some of our post-Sykes decisions need not be
taken as an indication that we have continued to apply the
“similar in kind” requirement to all residual clause cases.
Rather, while we recognize the continued relevance of Begay in
some cases, we have not required that crimes of violence be
“purposeful, violent, and aggressive” outside the context of
strict liability, negligence, and recklessness offenses. 5 Because
5
As we have focused almost exclusively on the “degree of
risk” test in post-Sykes cases, it is unclear whether Begay’s
“similar in kind” requirement truly survives Sykes at all in
(Continued)
31
Martin’s Maryland conviction for fourth degree burglary requires
a mens rea of knowledge, the Begay test does not apply and the
degree of risk analysis, as it was in Sykes, is sufficient to
resolve this case. However, even if Begay did apply to this
statute, our precedents compel the conclusion that breaking and
entering a dwelling is typically “purposeful, violent, and
aggressive,” and therefore is similar in kind to the offenses
enumerated in § 4B1.2(a)(2).
III.
Although there is no specific intent requirement in § 6-
205(a), Maryland fourth degree burglary is a malum in se crime
that does require general criminal intent. Green v. State, 705
A.2d 133, 138 (Md. Ct. Spec. App. 1998). Specifically, Maryland
courts have made clear that commission of fourth degree burglary
under § 6-205(a) requires knowing unprivileged entry into the
dwelling of another. One is therefore not culpable under the
statute without “an awareness that [the entry] was unwarranted -
lacking authority, license, privilege, invitation, or legality.”
Warfield v. State, 554 A.2d 1238, 1251 (Md. 1989). It is not
enough that a defendant intentionally breaks into another’s
this circuit. However, for purposes of this case I assume that
in analyzing a strict liability, negligence, or recklessness
offense, this circuit would require that the statute “typically
involve purposeful, violent, and aggressive conduct” as set
forth in Begay.
32
dwelling; he must also be “aware of the fact that he is making
an unwarranted intrusion.” Id. at 1250. The Warfield court’s
approving citation to the Model Penal Code confirms that the
mens rea required for commission of § 6-205(a) is “knowledge.”
Id. (clarifying that the knowledge requirement is designed “to
exclude from criminal liability both the inadvertent trespasser
and the trespasser who believes that he has received an express
or implied permission to enter”) (quoting 2 Model Penal Code &
Commentaries § 221.2, Comment 2(a), at 88 (1980)) (emphasis
added).
In Herd v. State, the Maryland Court of Special Appeals
drove home the statute’s knowledge requirement. 724 A.2d 693
(Md. Ct. Spec. App. 1999). After considering Warfield and Green,
the court emphasized that although fourth degree burglary is a
general intent crime, “the mens rea must, indeed, be criminal.”
Id. at 700. Without a knowledge requirement, the statute would
“ensnare with undiscriminating tentacles all sorts of actors
whom the Legislature never intended to treat as criminal.” Id.
at 701. It is therefore clear that § 6-205(a) does not
criminalize accidental or negligent acts, and is readily
distinguishable from statutes that our circuit has described as
33
“explicitly criminalizing a broad swath of unintentional
conduct.” 6
Because breaking and entering under § 6-205(a) must be
knowing, the Maryland courts have recognized that “a reasonable
belief that the trespass is authorized, licensed, or privileged
is a complete defense to the crime.” Herd, 724 A.2d at 701. See
also Green, 705 A.2d at 139. Although the Chief Judge rightly
notes that a reasonable mistake is a defense to § 6-205(a), it
does not necessarily follow that the presence of such a defense
(and conversely, the absence of a defense when a mistake is
unreasonable) renders § 6-205(a) a mere negligence crime.
In the criminal law, it is generally the case that an
honest and reasonable mistake of fact is a defense to a general
intent crime when it negates the mens rea required for the
offense. Warfield, 554 A.2d at 1252; 21 Am. Jur. 2d Criminal Law
§ 153. On the other hand, an honest but unreasonable mistake is
often not a defense, or is only a defense to a specific intent
crime. Id. 7 But a refusal to recognize unreasonable mistakes as
6
United States v. Rivers, 595 F.3d 558, 565 (4th Cir. 2010)
(holding that South Carolina’s blue light statute was not a
crime of violence under Begay).
7
It should be noted that there is significant debate over
whether “unreasonable” mistakes should be further classified as
either “negligent” or “reckless” in order to determine whether
they provide a defense to a given crime. See generally 1 Crim.
L. Def. § 62 (2013). Because mistakes under § 6-205(a) (and
(Continued)
34
exculpatory does not effectively reduce the mens rea of any
general intent crime to “negligence.” Indeed, the Green court
saw no conflict between careful adherence to “the knowledge
requirement” and excusal only of “the inadvertent trespasser and
the trespasser who entertains a reasonable belief that his
conduct was proper.” 705 A.2d at 139 (emphasis added). As with
other statutes requiring knowledge, the mens rea persists
despite the fact that a mistake with respect to the
circumstances surrounding the crime may not be exculpatory
unless it was made reasonably.
Residual clause cases from the Supreme Court and from this
circuit confirm that the existence of only a reasonable mistake
defense does not compel the conclusion that crimes requiring
“knowledge” should be treated as negligence crimes. Perhaps the
best example is Sykes itself. The Indiana vehicular flight
statute the Court considered in Sykes, Ind. Code § 35-44-3-3 8,
provided that a person may not “knowingly or intentionally” flee
from a law enforcement officer in a vehicle after the officer
has identified himself and ordered the person to stop. As the
under the other statutes discussed infra) are only referred to
as “reasonable” or not, this discussion (though it raises an
interesting issue) does not affect the outcome in the present
case.
8
Since repealed and replaced by the substantively identical
§ 35-44.1-3-1.
35
crime, on its face, could be committed either knowingly or
intentionally, the Court specifically noted that Indiana courts
have interpreted § 35-44-3-3 to require a mens rea of knowledge.
131 S. Ct. 2267, 2271 (2011) (citing Woodward v. State, 770
N.E.2d 897, 900–01 (Ind. Ct. App. 2002)).
Importantly, Indiana had codified in its criminal law a
general defense based on mistake—specifically, “[i]t is a
defense that the person who engaged in the prohibited conduct
was reasonably mistaken about a matter of fact, if the mistake
negates the culpability required for commission of the offense.”
Ind. Code. § 35-41-3-7. It is therefore clear that while
violation of the statute at issue in Sykes required knowledge,
an honest but unreasonable mistake of fact would not have been
exculpatory. The Supreme Court nonetheless found that because
the statute had “a stringent mens rea requirement,” its
violation was predicated on purposeful conduct and the degree of
risk analysis was sufficient. 131 S. Ct. at 2275.
The Fourth Circuit reached the same result in one of our
most recent residual clause cases. In United States v. Tillery,
this Court held that eluding police in a vehicle was a crime of
violence under the Guidelines. 702 F.3d 170. Under the Virginia
statute at issue, it is a violation of the law for a person,
having received a visible or audible signal to stop from a law
enforcement officer, to drive in willful and wanton disregard of
36
such signal or to attempt to elude law enforcement by any other
means. Va. Code Ann. § 46.2-817(A). The statute specifically
provides that it is “an affirmative defense . . . if the
defendant shows he reasonably believed he was being pursued by a
person other than a law-enforcement officer.” Id. (emphasis
added). Despite the absence of a defense for unreasonable
mistakes, this Court used the degree of risk analysis and held
that eluding police was a crime of violence. 702 F.3d at 176–77.
Although any of the above crimes (vehicular flight, eluding
police, and breaking and entering under § 6-205(a)) could
technically be committed despite a negligent mistake, our
precedents demonstrate that the existence of a defense only for
reasonable mistakes does not undermine the mens rea required to
commit the underlying crimes. It follows that because Maryland’s
fourth degree burglary is a knowledge crime, the Begay test is
unnecessary and the degree of risk analysis is dispositive.
However, even if Begay’s “similar in kind” analysis were applied
in this case, § 6-205(a) is a crime of violence because it
typically requires a knowing, affirmative criminal act.
Despite Begay’s use of the word “purposeful,” the “similar
in kind” analysis does not require that all crimes of violence
37
have a mens rea of “intent” or “purpose.” 9 As noted above, in
this Court’s only true application of Begay since Sykes, we
specifically found that possession of a shank in prison was a
crime of violence because it required “proof that the inmate
knowingly possessed the prohibited object,” and therefore
involved “’purposeful’ conduct.” United States v. Mobley, 687
F.3d 625, 631 (4th Cir. 2012). Thus, even under Begay, we have
held that crimes requiring a mens rea of “knowledge” are
“purposeful” (and for the reasons above, the existence of a
reasonable mistake of fact defense does not alter this result).
Finally, it must be remembered that in determining whether
a statute is a “crime of violence” under either James, Begay, or
Sykes, we are required to look to the manner in which the crime
is typically committed. In James, the Supreme Court stressed
that while one could “imagine a situation in which attempted
burglary might not pose a realistic risk,” the ACCA is based on
“probabilistic concepts” and “does not require metaphysical
certainty.” 550 U.S. 192, 207–08 (2007). See also United States
9
The Court’s general use of the word “purposeful” in Begay
necessarily created confusion with “purposeful” as used as a
level of culpability in the Model Penal Code. On its own terms
and as interpreted by this circuit, Begay does not require that
all crimes of violence have a mens rea of “intent.” Rather,
“purposeful” as used in Begay distinguished crimes whose risk of
harm stems from active, criminal conduct from those in which
negligent, accidental, or even faultless conduct typically
creates the risk of harm.
38
v. Carthorne, 726 F.3d 503, 507 (4th Cir. 2013) (examining the
risk of injury “in the usual case”); United States v. Foster,
674 F.3d 391, 394–95 (4th Cir. 2012) (Wilkinson, J., concurring
in the denial of rehearing en banc) (explaining that to
“hypothesize unusual cases” is “at odds with the simple common
sense on which the Supreme Court has relied in ACCA cases”).
Most importantly, Begay itself only requires that a crime of
violence “typically involve purposeful, ‘violent,’ and
‘aggressive’ conduct”; there has never been a need to
demonstrate that those factors are present in every conceivable
case. 10 The majority correctly notes that in a technical sense,
because an unreasonable mistake of fact is not a defense,
violation of § 6-205(a) “does not always” involve purposeful
conduct and “may be based on” negligent or reckless conduct. But
I submit that while breaking and entering a dwelling might, in
some rare cases, be committed with a lower level of culpability,
the manner in which it is typically committed renders it a
“crime of violence” under the Guidelines.
10
If there is any doubt that a conviction under § 6-205(a)
rarely results from negligent conduct, the language of the
Maryland courts is instructive. In Herd v. State, the Maryland
Court of Special Appeals referred to the mistake defense in
fourth degree burglary cases as “relatively rare and essentially
esoteric.” 724 A.2d 693, 704 (Md. Ct. Spec. App. 1999). In
explaining the burden of proof, the court went on to describe
such defenses as “arcane” and “aris[ing] only on rare
occasions.” Id. at 703.
39
IV.
As Judge Diaz observed, the proper reach of § 4B1.2’s
residual clause (and the residual clause of the ACCA) is not a
model of clarity. In light of the divergent conclusions being
reached by the courts of appeals (and the frequency with which
the residual clause is applied), it is evident that further
guidance from Congress or the Court is necessary. My fellow
panelists and I are in agreement that because Maryland fourth
degree burglary requires knowingly breaking and entering the
dwelling of another, it creates a high risk of confrontation and
therefore poses the same level of risk as generic burglary. In
my view, we need not look further. But even under Begay’s
“similar in kind” test, I believe our precedents compel the
result that Maryland fourth degree burglary is a “crime of
violence.” Therefore, I respectfully dissent and would affirm
the sentence imposed by the district court.
40